Bailey and Military Rehabilitation and Compensation Commission (Compensation)
[2016] AATA 415
•22 June 2016
Bailey and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 415 (22 June 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2015/0936
Re
Jeanetta Bailey
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 22 June 2016 Place Perth The Tribunal affirms the decision under review.
..........[Sgd]..............................................................
Senior Member CR Walsh
CATCHWORDS
COMPENSATION – whether the Respondent must accept liability for the Applicant’s compensation claim for “Morton’s metatarsalgia” – whether injury a service injury – standard of proof – peacetime service - reasonable satisfaction to be assessed by reference to relevant Statement of Principles - material before the Tribunal does not raise a connection between the injury and the Army services rendered by the Applicant – the material before the Tribunal and the relevant SOP does not uphold the contention that the injury is, on the balance of probabilities, connected with the Applicant’s Army service – decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004 – s 5 – s 6(1) - s 23 – s 27 – s 335 – s 335(3) – s 338 – s 339 – s 339(3)(a) – s 339(3)(b) – s 339(3)(c) - Part 2 – Chapter 2
Veteran’s Entitlements Act 1986 – s 196B
SECONDARY MATERIALS
Statement of Principles No 93 of 2010, titled “Morton’s metatarsalgia” – cl 3(b) - cl 5 – cl 6 – cl 6(a) – cl 6(d) – cl 9
REASONS FOR DECISION
Senior Member CR Walsh
22 June 2016
INTRODUCTION
Mrs Bailey seeks review of a decision of the Militrary Rehabilitation and Compensation Commission (MRCC), dated 30 October 2014, that the MRCC did not accept, under s 23 of the Military Rehabilitation and Compensation Act 2004 (MRCA), Mrs Bailey’s claim for compensation for “Morton’s metatarsalgia”, allegedly caused by wearing tight fitting military boots throughout her service in the Australian Army.
FACTUAL & PROCEDURAL BACKGROUND
Ms Bailey enlisted in the Australian Regular Army on 30 August 1988 and was discharged on 14 February 2007.
On 15 February 2007, Mrs Bailey transferred from the Australian Regular Army to the Army Reserves.
Mrs Bailey’s last day of parade was 19 May 2008, following which she became an inactive Army reserve member.
A Department of Defence “Specialist Referral and Report”, completed by Diane Pridham, Physiotherapist, and dated 5 March 1998, states:
Jeanetta attended Physio on three occasions for treatment to her feet. She complained of bilateral 1st MTP soreness and medial left tibial pain after running or playing netball.
On examination she was noted to have broad, pronated feet with a bilateral hallux valgus. There was tenderness to palpation over the medial tibial border.
……..She has been given some full length formthotics for her running shoes and some ¾ length for her work shoes. Some stretches have also been recommended and some low dosage ultrasound applied to the soft tissues in the medial tibial region.
A Department of Defence “Outpatient Clinical Record”, dated 28 June 2001, records that Mrs Bailey has:
Pain on palpation ball of foot. Altered sensation stitches down lateral aspect L foot
A Department of Defence “Outpatient Clinical Record”, completed by Dr Hammond and dated 27 September 2001, records that Mrs Bailey is currently pregnant and has “numbness along lateral border of foot” and states:
Non tender musculature
? neuropraxia related to pregnancy.
In a Department of Defence “Comprehensive Preventive Health Examination”, dated 11 December 2003, Mrs Bailey answered “No” to the question “Do you have any current illnesses or injuries?” and answered “No” to the question “Is there any other health problem troubling you?” and left blank her answer to the question “Do you have any specific occupational or workplace…concerns?”
In a Department of Defence Discharge Health Statement”, signed by Dr John Shephard and dated 21 November 2006, Mrs Bailey answered “No” to the question “Do you suffer from any illness of injury at the present time?”
A Department of Defence “Outpatient Clinical Record”, completed by Dr Shephard and dated 27 November 2006, notes that Mrs Bailey complained of numbness and tingling in her left greater toe and of pins and needles in “(L1) foot”.
In a report dated 3 November 2014, Mr Mark Ould, Podiatrist, stated:
At the time of original presentation on 8 October 2009 Mrs Bailey complained of a tingling burning sensation in the balls of both feet. A provisional diagnosis of intermetatarsal Morton’s neuroma in the third intermetatarsal spaces was made…..
An ultrasound of Mrs Bailey’s left and right feet, dated 16 October 2009, confimed Mr Ould’s provisional diagnosis. The ultrasound report records the following:
Ultrasound Left Foot
…….
Comment:
1. Appearance of an interdigital neuroma at the 3/4th web space.
2.Bursae noted superficially of the flexor digitorum tendon sheaths at the plantar aspect at the levels of the 2nd, 3rd and 4th metatarsal heads.
3.Joint effusion seen within the 1st and 2nd metatarsophalangeal joints with osteoarthritic change present at the 1st MTP joint.
Ultrasound Right Foot
…….
Comment:
1. No evidence of an interdigital neuroma.
2.Appearance suspicious of metatarsal head bursitis at the plantar aspect of the 2nd and 3rd metatarsal heads.
3.Joint effusion seen within the 1st to 4th metatarsophalangeal joints with bony spurring in relation to the 1st metatarsophalangeal joint suggesting osteoarthritic change.
In a medical report dated 17 November 2009, Dr Nicole Leeks, Orthopaedic Surgeon, reported the following:
[Mrs Bailey]………presents today with, in particular, a painful left forefoot. She described burning, numbness, and an inability to walk in bare feet. She is unable to wear a high heel. She has had an ultrasound which confirms neuromas in 2nd/3rd and 3rd/4th webspace and has had cortisone injection with good early relief. Clinically today she has a palpable click in the 2nd/3rd webspace and tenderness in the 3rd/4th.
On or about 26 November 2009, Dr Leeks, excised Mrs Bailey’s neuromas in the interspaces between the second and third and third and fourth left foot toes. Subsequent histopathology dated 30 November 2009 confirmed neuromata was excised.
In a medical report, dated 13 January 2010, Dr Leeks states:
[Mrs Bailey] is just over six weeks since excision of two neuromas from the left foot. She is slowly improving, but clinically still swollen and still feels a bit “tingly”. I certainly think she is moving in the right direction and I have reassured [Mrs Bailey] of this and at this stage I have made no further appointments to see her.
In a medical report dated 5 June 2014, Dr Johan Yin, Departmental Medical Officer (DMO), stated:
The diagnosis is Morton’s metatarsalgia ICD No. 355.6
The date of clinical onset was in 2006.
The veteran has claimed he (sic.) has worn ill-fitting footwear for 17 years. This meets factor 6(a) of the RMA SOP’s for the condition and can be accepted as service related.
In a Department of Veteran’s Affairs (DVA) “Diagnostic Report – Morton’s Metatarsalgia”, dated 5 July 2014, Dr Andrew Summers reported that Mrs Bailey experienced:
Pain - on walking - mostly when running - footwear dependent - permanent daily pain reported by patient.
In a determination, dated 7 October 2014, the MRCC denied liability for Morton’s metatarsalgia pursuant to s 23 of the MRCA (Determination). The Determination states:
The Statement of Principles that is applicable to your diagnosed condition is:
Morton’s Metatarsalgia – Instrument No 92 of 2010
………
In considering this claim, I note the following:
Your service records contain some reference to foot pain, however, the symptoms are not consistent with Morton’s metatarsalgia.
The diagnosis of Mornton’s metatarsalgia was diagnosed by Dr Leeks in late 2009, more than 2 years after your discharge.
From this, I find that this onset was likely sometime in the 2 years following your discharge.
As such, I find that any tight footwear worn in the one or two years immediately before clinical onset is not related to your military service.
On 30 October 2014, Mrs Bailey requested a reconsideration of the Determination by the MRCC. In her request, Mrs Bailey stated:
The Delegate contends that the clinical onset of the Morton’s Metatarsalgia was ‘likely’ two years after my discharge, which is incorrect. I continually had problems with my foot during my military service (August 1988 – Feb 2007). To expect that a condition such as Morton’s Metatarsalgia wold manifest in the ‘two years after my discharge’, is only based on when I had a correct clinical diagnosis conducted.
………..
I believe the Delegate has not considered my Army Reserve service. Post my discharge I almost immediately engaged in Army Reserve employment, and paraded with my unit, initially five days a week, then reduced it to four days a week for a minimum of 6 hours a day well into 2008.
………….
Considering the length of my Regular and Reserve service and the combined time wearing tight fitting footwear I believe that the onset did occur during my service due to wearing tight fitting footwear as defined in the relevant SOP, but was never correctly diagnosed.
On 4 February 2015, the MRCC confirmed the Determination (Decision). The reasons for the Decision state:
I note the DMO’s opinion that the date of clinical onset was 2006. I note that on that date you presented with numbness and tingling and neuropraxia was again mentioned. It is not clear why the DMO chose this as the date of clinical onset and I do not accept this as the date of onset.
I am satisfied that the date of onset of the condition was 8 October 2009 when the podiatrist made a provisional diagnosis of intermetatarsal Morton’s neuroma which was later confirmed by ultrasound.
I also note that your full time service ended in February 2007 and your Reserve service ended in June 2008, and that until the end of your Army Reserve service you paraded with 17 Signal Regiment for 4 to 5 hours per day, Monday to Friday, in the same position that you had discharged from the ARA.
The SOP specifically states that you must have been wearing the restricted footwear “for the two years before the clinical onset of Morton’s metatarsalgia”.
There is a 16 month gap between the end of your service (June 2008) and the date of onset of the Morton’s metatarsalgia condition (October 2009).
I am therefore not satisfied that you meet factor (a) of the SOP.
Accordingly, I am not satisfied your Morton’s metatarsalgia condition can be said to have arisen as a result of your military service and I have confirmed that part of the determination dated 7 October 2014 that denied liability for the Morton’s metatarsalgia accordingly.
On 25 February 2015, Mrs Bailey applied to the Tribunal for a review of the Decision. Mrs Bailey’s stated “Reasons for Application” are as follows:
I request review of the decision made by Veterans Affairs for the following reasons.
I provided extensive details of the problems I had with my feet during my service with the Australian Army. My medical documents show no details of any pre-existing conditions prior to my enlistment.
The Delegates decision is based on the date that I finally was given a correct clinical diagnosis. This was after I had discharged from the Army; however I provided evidence that the signs and symptoms were present several years before my discharge.
The Veterans Affairs Department Medical Officer in my original claim agreed that the clinical onset was during my service based on the medical evidence; however the Delegate refused to accept this medical advice, for what reason I am unsure. Why was this information sought if it was not going to be considered?
Two key pieces of evidence I supplied, are referred to by Veteran’s Affairs, are I believe to be the typical signs and symptoms of the condition. After repeated visits to Military Medical Centres without any further explanation or treatment, I no longer continued to seek medical assistance as I assumed it was something I would have to put up with. I do not have medical training and so did not realise there was a condition that caused my feet to be as painful as they were, and still are.
No other medical evidence is present to explain what the diagnosis is for the presentation I had for the pain in my left foot. I think this is not merely a coincidence, but the onset of the condition I now suffer from. The same signs and symptoms where present when I was in the Army and sought medical advice, as where when I discharged. After persisting with the pain during and after my Military service I finally could no longer put up with it and sought treatment from a Podiatrist.
The likely hood of the clinical onset being in the small window between my completion of service and the exact time I sought treatment and was provided with a clinical diagnosis through my private Podiatrist is completely unrealistic, considering the medical evidence I have provided.
The medical evidence I provided shows the same signs and symptoms that I presented with while I was in the Army (in one case six years prior to my regular service discharge), was what I presented to my Podiatrist after my discharge.
The inability to make any diagnoses or conduct further testing by the Army was outside my control.
MEDICAL EVIDENCE
Professor Jerzy (George) Sikorski, medical report dated 20 July 2015
Mrs Bailey was assessed by Professor Jerzy (George) Sikorski, Orthopaedic Surgeon (Next Health Group), on 15 July 2015. In his medical report, dated 20 July 2015, Professor Sikorski states:
[Mrs Bailey] has lodged a claim for Morton’s metatarsalgia which has been denied on the basis that it presented two years after discharge. This report is specifically to facilitate a review by the Administrative Appeals Tribunal.
Ms Bailey has had problems with her right foot for some significant time and her medical record from her time in the army records the following:
· On 29 September 1988, she had 10 days of foot pain diagnosed as Achilles tendonitis.
· On 26 January 1989, she complained of a corn on the right little toe which was acquired during basic training and she attributed to the wearing of tight, ill-fitting shoes and boots. This problem was then recorded as giving rise to consultations on 20 February 1989, 28 March 1989, 5 May 1989, a podiatry assessment on 26 July 1989, a medical consultation on 19 March 1990, a consultation on 7 October 1990, 21 December 1990, 23 May 1998, a podiatry assessment on 5 July 1998 and a podiatry assessment on 21 August 2003.
The first documented problems with her left foot were recorded in 2009 and the following entries in her medical records relate to left foot problems.
· On 6 March 1998, when she was pregnant there was a physiotherapy entry that she had aching over the dorsal areas of both forefeet.
· On 27 November 2006, she was recorded as having numbness and tingling of the left hallux with a reduced pinprick sensation. This was accompanied by pain in the metatarsal area.
· On 16 October 2009, an ultrasound of the left foot was performed and showed a neuroma in the third and fourth web space with effusions in the first and second MTP joints with osteoarthritis in the first MTP joint.
· On 17 November 2009, she was seen by Dr Nicole Leeks (orthopaedic surgeon) with pain, burning and numbness in the left forefoot with difficulty walking barefoot or in high heeled shoes. She was treated with cortisone injections and had good early relief.
She subsequently had surgery to excise neuromata in the interspaces between the second and third and between the third and fourth toes. Subsequent histology confirmed the material excised were neuromata.
· On 5 July 2014, her general practitioner recorded that she had pain on walking, running and that the pain was footwear dependent.
SITUATION AT THE TIME OF ASSESSMENT
Symptoms
Pain
She stated that she still had pain in the metatarsal areas similar to that experienced prior to her surgery. The pain was constant, not related to weight-bearing and not affected by shoe wear. High heels would aggravate her symptoms. She still had partial numbness in one of the toe interspaces.
………
The left foot showed a minor loss of dorsiflexion and plantar flexion and the index and middle toes and these movements were painful at their extremes. There was a loss of sensation over the lateral aspect of the left middle toe.
The right hallux MTP joint rested at 20 [degrees] of extension and could dorsiflex to 75 [degrees]. The left hallux rested at 20 [degrees] of dorsiflexion and could dorsiflex to 80 [degrees].
DIAGNOSIS AND OPINION
Ms Bailey seems to have a recurrence of forefoot problems after successful surgery for the removal of two Morton’s neuromata of the left foot. Constitutionally, she has broad feet whose width (10cm) matched the external width of the shoes that she was wearing.
Her medical record clearly identifies that she has had recurrent problems on the other (right) foot in the form of corns over the MTP joint of the little toe. This is compatible with her wearing tight or ill-fitting shoes. Her left foot problems were first recorded in 2006 but the clinical features recorded were not those of a Morton’s metatarsalgia. The first clear evidence of a Morton’s metatarsalgia emerged in 2009 a year after she had been discharged from the Army reserve.
The question remains as to whether inappropriate, ill-fitting or excessively narrow shoes could be implicated as causing the later development of Morton’s neuromata. I have reviewed the literature and performed a survey in PubMed and have found no evidence to link narrow shoe wear with the development of Morton’s metatarsalgia. The impression that I have is that the aetiology and pathogenesis of this condition is unclear. Some workers in the field have postulated that tight shoe wear or inappropriate show wear such as high heels can generate this problem, but I have not seen any evidence to support this contention.
In his report, in response to the question:
3.3 What condition(s), if any does the Applicant currently suffer from?”
Professor Sikorski states:
The applicant currently has a recurrence of metatarsalgia (pain in the forefoot). She has had excision of Morton’s neuromata which was successful for a period. It is unclear at present whether or not she has a recurrence of neuromata or has another cause for forefoot discomfort.
In response to the following question:
3.5In your opinion, if the claimed condition arose on or after 1 July 2004, has the diagnosed condition(s) you described in 3.3, arisen out of, or was attributable to, any defence service rendered having regard to the relevant Statement of Principle (SoP). Please explain your answers.
Professor Sikorski states:
I can find no evidence to link Ms Bailey’s current problems or the Morton’s neuromata to her service in the army. There is simply no direct scientifically credible data to link any aspect of her army service with the development of Morton’s neuromata. [Emphasis added]
ISSUES
The relevant issues for consideration by the Tribunal are as follows:
(i) what condition does Mrs Bailey suffer from?
(ii) when was the date of clinical onset of the condition?
(iii) is there a Statement of Principles (SOP) which should be applied?
(iv)was the condition resultant from “warlike/non warlike” service or “peacetime” service?
(v) if “peacetime”,
· whether a factor in the applicable SOP existed?
· if so, whether there is the necessary link between the SOP factor and Mrs Bailey’s relevant defence service rendered on or after 1 July 2004?
(vi)whether Mrs Bailey satisfies one of the alternative tests in s 27 of the MRCA (for the purpose of s 23(1) and/or s 23(4) of the MRCA) to establish the sufficient connection between the injury and her defence service.
CONSIDERATION
Part 2 of Chapter 2 of the MRCA deals with when the MRCC must accept liability for service injuries, diseases and deaths.
Specifically, s 23 of Part 2 of Chapter 2 of the MRCA provides:
(1)The Commission must accept liability for an injury sustained, or a disease contracted by a person, if:
(a)if the person’s injury or disease is a service injury or disease under section 27; and
(b)the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c)a claim for acceptance of liability for the injury or disease has been made under section 319.
Section 5 of the MRCA defines the term “injury” as follows:
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
and defines “disease” as follows:
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
Section 27 of the MRCA, titled “Main definitions of service injury and service disease”, provides:
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c) in the opinion of the Commission:
(i)the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv)changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d) the injury or disease:
(i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease; [Emphasis added]
There are two standards of proof that the MRCC applies in deciding matters under Chapter 2 of the MRCA (and the rest of the MRCA). The “Notes” at the end of s 23(1) state:
Note 1:The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non-warlike service.
Note 2:The standard of proof mentioned in subsection 335(3) applies to the following:
(a) claims that the injury or disease is a service injury or disease that r relates to peacetime service;
(b)all claims when determining whether a person sustained a particular in injury or contracted a particular disease;
(c)all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
Section 6 of the MRCA, titled “Kinds of service to which this Act applies”, provides:
(1) In this Act:
(a)warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and
(b)non-warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non-warlike service for the purposes of this Act; and
(c)peacetime service means any other service with the Defence Force; and
(d)defence service means warlike service, non-warlike service or peacetime service.
Section 335 of the MRCA states:
Standard of proof for claims relating to warlike or non-warlike service
(1)If a claim in respect of subsection 23(1) or (3) or 24(1) for acceptance of liability for a person's injury, disease or death relates to warlike or non-warlike service rendered by the person while a member, the Commission must determine that the injury is a service injury, that the disease is a service disease, or that the death is a service death, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
When there is no sufficient ground for making a determination
(2)In applying subsection (1) in respect of a person's injury, disease or death, related to service rendered by the person while a member, the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury is a service injury;
(b) that the disease is a service disease; or
(c) that the death is a service death;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person while a member.
Note:This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
Other determinations to be made to its reasonable satisfaction
(3)Except in making a determination to which subsection (1) applies, the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.
Note:This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 339. [Emphasis added]
For some claims for acceptance of liability for an injury, disease or death the standard of proof can only be met if the injury or disease, or the cause of death, is covered by a SOP: s 338 and s 339 of the MRCA. A SOP is an instrument made under s 196B of the Veterans' Entitlements Act 1986: s 5 of the MRCA. For other claims for acceptance of liability, the SOPs are not relevant.
Section 338 of the MRCA, titled “Reasonableness by hypothesis to be assessed by reference to Statement of Principles”, provides:
(3)For the purposes of subsection 335(2), a hypothesis connecting an injury sustained, or a disease contracted, by a person, or the death of a person, with the circumstances of any particular service rendered by the person while a member, is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11) of the Veterans’ Entitlements Act 1986; or
(b)a determination of the Commission under subsection 340(2) of this Act;
that upholds the hypothesis.
Section 339 of the MRCA, titled “Reasonable satisfaction to be assessed in certain cases be reference to Statement of Principles”, provides:
(3)In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans' Entitlements Act 1986 ; or
(ii)a determination of the Commission under subsection 340(3) of this Act; and
(c)the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
The SOP which applies to “Morton’s Metatarsalgia” is SOP No 93 of 2010 (SOP 93 of 2010). SOP 93 of 2010 provides (in clause 3(b)) that, for the purposes of SOP No 93 of 2010:
…..“Morton’s metatarsalgia” (also known as Morton’s neuroma) means a neuropathy of the interdigital plantar nerve, most commonly in the second or third intermetatarsal space, due to entrapment or irritation of the never between the metatarsal heads. The condition is characterised by pain and numbness of the forefoot which may radiate to the toes.
Clause 5 of SOP 93 of 2010 further provides that “at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person”. Clause 6 of SOP 93 of 2010 states:
The factor must exist before it can be said that, on the balance of probabilities, Morton’s metatarsalgia or death from Morton’s metatarsalgia is connected with the circumstances of a person’s relevant service is:
(a)wearing footwear which tightly restricts the forefoot of the affected foot, for at least four hours per day on more days than not, for the two years before the clinical onset of Morton’s metatarsalgia; or
………..
(d)having a biomechanical abnormality of the foot which damages or compresses the interdigital nerve within the affected intermetatarsal space, at the time of the clinical onset of Morton’s metatarsalgia’ or
………. [Emphasis added]
Standard of proof - Mrs Bailey’s service
Mrs Bailey’s service with the Australian Regular Army can be categorised, under s 6(1) of the MRCA, as follows:
· Service from 30 August 1988 to 30 June 2004 cannot be categorised under s 6(1) of the MRCA as this period was covered by different legislation;
· Peacetime service from 1 July 2004 to 14 March 2006;
· Warlike service on “Operation Catalyst” from 15 March 2006 to 1 July 2006;
· Peacetime service from 2 July 2006 to 15 July 2006;
· Warlike service on “Operation Catalyst” from 16 July 2006 to 20 September 2006;
· Peacetime service from 21 September 2006 to 15 February 2007 (being the date Mrs Bailey transferred to the Army Reserves); and
· Peacetime service from 15 February 2007 to 19 May 2008 (being the date on which Mrs Bailey became an “inactive” Army Reserve member).
The Tribunal finds that Mrs Bailey rendered “peacetime service” pursuant to s 6(1)(c) of the MRCA from the date of the injury until she commenced “inactive” service in the Army Reserves on 19 May 2008. Consequently, the relevant standard of proof in this case is the standard of proof in s 335(3) of the MRCA and, it follows, s 339(3) of the MRC Act: refer to paragraphs 32 and 35 above.
Left Foot
It is common ground that Mrs Bailey has a diagnosis of Morton’s metatarsalgia in her left foot.
There is insufficient evidence to support a conclusion that the Morton’s metatarsalgia of the left foot was sustained in the circumstances that Mrs Bailey claims.
The available medical evidence does not “raise a connection” between the Morton’s metatarsalgia of the left foot and some particular defence service rendered by Mrs Bailey while she was a member of the Army sufficient to satisfy s 339(3)(a) of the MRCA: refer to paragraph 35 above.
Even if the Tribunal was satisfied the material before the Tribunal raises the necessary connection for the purposes of s 339(3)(a) of the MRCA, the material before the Tribunal, and the SOP, does not “uphold the contention” that the Morton’s metatarsalgia is, on the balance of probabilities, connected with that service for the purpose of s 339(3)(b) and (c) of the MRCA: refer to paragraph 35 above. In making these findings, the Tribunal relies, in particular, on the medical report of Professor Sikorski, dated 20 July 2015, and Professor Sikorski’s oral evidence at the hearing: refer to paragraphs 22 to 24 above
As set out above (in paragraph 37), clause 6 of SOP No 93 of 2010 sets out the factor or factors that must exist before it can be said that the claimed condition is, on the balance of probabilities, connected with the circumstances of a person’s relevant service. Only the factor in clause 6(a) of SOP No 93 of 2010 has any potential relevance to Mrs Bailey’s claim in relation to her left foot.
The Tribunal’s view is that the date of clinical onset of Mrs Bailey’s left foot Morton’s metatarsalgia is 8 October 2009, being the date Mr Mark Ould made a provisional diagnosis of Morton’s metatarsalgia which was later confirmed by ultrasound: refer to paragraphs 11 and 12 above.
Mrs Bailey transferred from the Australian Regular Army to the Army Reserves on 15 February 2007 and became an “inactive” Army Reserve member on 19 May 2008, being two years before the clinical onset of Morton’s metatarsalgia (on 8 October 2009).
Having regard to the date of clinical onset (being 8 October 2009) and Mrs Bailey’s “Attendance Summary”[1], it is clear that Mrs Bailey could not have been wearing footwear which tightly restricts the forefoot of the affected foot, for at least four hours per day “on more days than not, for the two years” before the clinical onset of Morton’s metatarsalgia as required by clause 6(a) of SOP No 93 of 2010.
[1] Attachment 1 to Exhibit 1.
The total amount of days in which Mrs Bailey paraded from 8 October 2007 to 8 October 2009 was 80 days. As such, 80 days within a two year period (containing 730 days), could not be considered “more often than not” as prescribed by clause 6(a) of SOP No 93 of 2010. Therefore, the SOP factor 6(a) is not satisfied in relation to Mrs Bailey’s left foot.
Right Foot
There is insufficient evidence before the Tribunal to support a conclusion that there is a diagnosis of Morton’s metatarsalgia in relation to Mrs Bailey’s right foot.
Even if the Tribunal was satisfied that a diagnosis was made of Morton’s metatarsalgia in relation to the right foot, there is insufficient evidence to support a conclusion that the Morton’s metatarsalgia was sustained in the circumstances that Mrs Bailey claims.
The available evidence does not “raise a connection” between the Morton’s metatarsalgia of the right foot and some particular defence service rendered by Mrs Bailey while she was a member of the Army sufficient to satisfy s 339(3)(a) of the MRCA: refer to paragraph 35 above.
Even if the Tribunal was satisfied the material before it raises the necessary connection, the material before the Tribunal, and the SOP do not “uphold the contention” that the Morton’s metatarsalgia is, on the balance of probabilities, connected with that service for the purpose of s 339(3)(b) and (c) of the MRCA: refer to paragraph 35 above.
As set out above (in paragraph 37), clause 6 of the SOP No 93 of 2010 sets out the factor or factors that must exist before it can be said that the claimed condition is, on the balance of probabilities, connected with the circumstances of a person’s relevant service. Only clause 6(a) and clause 6(d) of SOP No 93 of 2010 have any potential relevance to the Mrs Bailey’s claim in relation to her right foot: refer to paragraph 37 above.
In relation to whether the factor in clause 6(a) of SOP No 93 of 2010 applies in relation to Mrs Bailey’s claim in relation to her right foot the Tribunal repeats its findings in paragraphs 45 to 48 above.
In relation to whether the factor in clause 6(d) of SOP No 93 of 2010 applies in relation to Mrs Bailey’s claim in relation to her right foot the Tribunal finds the following.
“Biomechanical abnormality” is defined at s 9 of the SOP No 93 of 2010, for the purpose of the factor in clause 6(d) of SOP No 93 of 2010, as follows:
“a biomechanical abnormality” means abnormal foot function or an acquired foot pathology, such as:
(a) claw toes;
(b) hallux valgus;
(c) hammer toes;
(d) insufficiency of the first ray of the foot;
(e) overloading of the metatarsal heads;
(f) overpronation of the foot on propulsion
(g) pes cavus; or
(h) pes planus;
Whilst there is medical evidence to suggest the possibility that Mrs Bailey had some biomechanical abnormality (i.e. hallux valgus) in her right foot as far back as March 1998 (refer to paragraph 5 above) that is insufficient to satisfy clause 6(d) of SOP No 93 of 2010 which requires the biomechanical abnormality “damages or compresses the interdigital nerve within the affected intermetatarsal space” at the time of the clinical onset of Morton’s metatarsalgia, being 8 October 2009. The contemporaneous medical evidence does not establish this. In this regard, the Tribunal relies, in particular, on the medical report of Professor Sikorski, dated 20 July 2015, and Professor Sikorski’s oral evidence at the hearing: refer to paragraphs 22 to 24 above. Consequently, SOP factor 6(d) is not satisfied in relation to Mrs Bailey’s right foot.
DECISION
For the above reasons, the Tribunal affirms the Decision.
I certify that the preceding 58 (fifty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh .......[Sgd].................................................................
Administrative Assistant
Dated 22 June 2016
Date of hearing 3 May 2015 Representative for the
ApplicantMr S Bailey Representative for the
RespondentMr M Hawker
Solicitors for the Respondent
Sparke Helmore Lawyers
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