Blake and Military Rehabilitation and Compensation Commission (Compensation)

[2016] AATA 434

Blake and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 434 (28 June 2016) 

Division	VETERANS’ APPEALS DIVISION
File Number(s)	2015/3924
Re	Jodie Blake
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date	28 June 2016
Place	Canberra

The decision under review is affirmed.

................................[sgd]........................................

Deputy President Gary Humphries

Catchwords

COMPENSATION – service in the Royal Australian Navy – extension of liability under accepted condition for degenerative disc disease causing low back pain – whether service contributed to condition to a significant degree – insufficient medical evidence – decision under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 14

Cases

Beezley v Repatriation Commission [2015] FCAFC 165

Montesalvo and Australian Postal Corporation [2011] AATA 319

REASONS FOR DECISION

Deputy President Gary Humphries

28 June 2016

1. Mrs Jodie Blake served in the Royal Australian Navy from October 2000 until medically discharged in November 2006. She served during that time as a cook on board HMAS Tobruk and at establishments on land. She is 38 years of age, and is the applicant in these proceedings.

2. From 2003, while still in service, Mrs Blake began to report hip and back pain. In June 2006 she lodged a rehabilitation and compensation claim with the respondent, the Military Rehabilitation and Compensation Commission (the Commission), in respect of musculoskeletal problems affecting her lower back, hips and upper back. In January 2008 the Commission accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) to pay compensation in respect of bilateral trochanteric bursitis and gluteal tendinopathy. In about April 2013, Mrs Blake wrote to the Commission requesting an extension of liability under the accepted condition to include her back pain condition, but this claim – classified as degenerative disc disease with L5/S1 disc bulge causing low back pain – was refused on 17 July 2013. At Mrs Blake’s request this decision was reviewed, but was affirmed on 1 July 2015. She applied on 29 July 2015 for review of that decision by the Tribunal.

   Issue before the Tribunal

3. Though the claim for lower back pain was not made until more than six years after the conclusion of her military service, Mrs Blake feels that her service, and the service-related condition of bilateral trochanteric bursitis and gluteal tendinopathy, has contributed to the development of her back pain, and is therefore compensable under the Act. The contention – based in particular on the evidence of Prof Kerin Fielding – is that her bursitis has caused her to develop a trendelenburg gait, which in turn contributed, with the bursitis, to the development of a lumbar disc disease.

4. The issue before the Tribunal is therefore whether, on the balance of probabilities, her accepted condition, and any consequential condition to which the accepted condition gave rise, has contributed significantly to the development of her lumbar spine condition.

   The medical evidence

5. Mrs Blake has been examined by many medical specialists, including several rheumatologists and orthopaedic surgeons, an interventional pain physician, GPs and a physiotherapist. What is striking about almost all their reports is that they display considerable uncertainty as to the origin of her lumbar condition. The reports on the whole accept that Mrs Blake suffers lumbar pain, but none state with any confidence what has caused it.

6. Speculation in any field of endeavour is an acceptable response where evidence is ambiguous or scant. However, a finding in favour of an applicant before a court or tribunal must be based on more than speculation. No general onus of proof lies on an applicant for review in Tribunal proceedings, of course, but the Federal Court has recently clarified the nature of the obligation on an applicant to articulate a case upon which a claim might proceed. In Beezley v Repatriation Commission [2015] FCAFC 165 at [68] the Full Court said:

   If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357 and 358 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J); Ward v Western Australia [1996] FCA 1452; 69 FCR 208 at 215-218; and Evans v Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] FCAFC 81; 289 ALR 237 at [18] and the cases there cited.

7. In light of this test, the Tribunal will consider the evidence supporting a causal link between the applicant’s accepted condition and her lumbar condition, and then the evidence discounting such a causal link.

8. Although Prof Fielding’s two reports – dated 20 August 2015 and 15 October 2015 – are among the more recent reports on Mrs Blake’s condition, Prof Fielding was not called as a witness. In the first of her reports, she observed that Mrs Blake walks with a limp, she has positive trendelenberg [sic] sign bilaterally and significant tenderness over both trochanteric bursae. She then concludes:

   The lumbar disc disease occurred after the bursitis and is very likely related to the long standing trochanteric bursitis and poor gait. There is no history of any other cause/trauma to the L/S Spine.

   In her October 2015 report, she finds:

   The bilateral trochanteric bursitis gives her a Trendelenburg-type gait which causes her to walk with a significant limp on both sides creating an abnormal movement in her lower lumbosacral spine which I believe is related to her degenerate [sic] disc disease.

9. Eliane Van Puyvelde, a physiotherapist, treated Mrs Blake for a number of years. She designed a program of personal training for Mrs Blake which, together with Pilates classes, had the purpose of correcting her poor biomechanical loading patterns. In a report dated 13 May 2015 she states:

   Jodie has since late 2012 discovered that she has also degenerative disc disease with a disc bulge at L5/S1 level. …

   Jodie’s hips and her low back appear to exacerbate each other and it is highly likely that altered hip biomechanics for such a long time have been a significant contributor to the lumbar degeneration.

10. The Commission called Dr Laurence McEntee, orthopaedic surgeon, to give evidence. He had examined Mrs Blake in June 2013. In a report dated 24 June 2013, he diagnosed a lumbar degenerative disc disease, describing it as a ‘stand-alone condition’. As to the condition’s origin or cause, he said:

    Theoretically, the trochanteric bursitis and gluteal tendinopathy that this patient has as an accepted condition may have contributed to the development of her current symptoms of lower back pain and right sided sciatica by chronically altering her core musculature and hip girdle mechanics and, thereby, putting increased stress on the lumbar spine in combination with loss of physical fitness and conditioning as a result of her chronic bilateral hip pain. However, there is no evidence in the literature that I can find however to support this theory.

    Therefore, in summary, it is possible that Mrs Blake’s current symptoms of lower back pain and right sided sciatica were to some degree caused by her trochanteric bursitis and gluteal tendinopathy.

    …

    In my opinion, the current conditions were not made worse by Mrs Blake’s military service as they were not present whilst she was in the Australian Defence Force; therefore, the current conditions cannot be considered an aggravation. 

    …

    Yes, the most likely underlying causative factor is the known natural degenerative process that occurs in the lumbar spine that often leads to the development of symptoms of lower back pain and sciatica. This is largely driven by a person’s genetic make-up and it is contributed to by Mrs Blake’s obesity and lack of physical conditioning. These last two factors, however, can be considered secondary to the development of her trochanteric bursitis and gluteal tendinopathy. In my opinion, the genetic and degenerative factors to be [sic] very significant in the development of Mrs Blake’s current symptoms.

11. When asked to describe the state of the medical literature on known links between bursitis or tendinopathy and back pain, he said that, while one may contribute to some degree to the other, there’s no published series to support such a contribution; so while it’s theoretically possible there’s no hard evidence for it.

12. However, Dr McEntee confirmed that between 10 and 20 percent of the back condition could have been caused by, or aggravated by, Mrs Blake’s military service:

    … in my experience, once a person’s occupation often does contribute significantly to the development of lower back pain, and so I would have said it is unlikely to be much lower than 10 percent but certainly no higher than 20, obviously [sic].

13. Dr Price Gallie, on the other hand, considered that there was no contribution from military service to Mrs Blake’s spinal condition. Dr Gallie, also an orthopaedic surgeon, wrote a report dated 9 January 2015, based on an examination in November 2014, in which he diagnosed Mrs Blake’s condition as Lumbar spondylosis, a stand-alone condition. He opined – and confirmed in a supplementary report of 30 April 2015 – that Her low back pain is unrelated to her ADF employment. In his live testimony he placed some emphasis on the exercise program prescribed for her by Ms Van Puyvelde as the likely cause of the flare-up in her lower back condition in the period before he examined her:

    …if she was doing extensive exercises, including Olympic weightlifting, that is far more likely to have been an aggravating factor in the onset of her back pain, particularly given that it coincides with the time of the increase in the severity of lower back pain rather than anything to do with the trochanteric bursitis.

14. Mrs Blake denied that the exercise program prescribed for her by Ms Van Puyvelde included Olympic weightlifting, and I accept that evidence.

15. The sum of the rest of the medical evidence seems generally inconclusive. Her GPs support the existence of a causal connection between her accepted condition and her claimed condition, but Dr Alastair Currie and Dr Phillip Vecchio seem to trend in the opposite direction. Dr Patrick Hanrahan, over several reports, appears conflicted over an appropriate diagnosis and cause, and the report of Dr Leigh Dotchin was not tendered.

    Consideration

16. Mrs Blake appears to have experienced an escalation in the pain in her lower back sometime in 2012, although she had had pain symptoms during her time in the Navy. She clearly believes that the impact of her accepted condition of bilateral trochanteric bursitis and gluteal tendinopathy on her posture and gait have contributed to the development of this lower back pain, and in that conviction she has some medical support, in particular from Prof Fielding.

17. The Tribunal has chosen to focus, in weighing the medical evidence, on the reports of the three orthopaedic surgeons who have provided reports, principally because of their specialist knowledge and because these reports are more recent than many of the other reports. Of these three specialists, one (Dr Gallie) is persuaded of no connection between Mrs Blake’s military service and her claimed condition, another (Prof Fielding) seems convinced of the connection and the third (Dr McEntee) sits somewhere between these positions.

18. Conflicting medical evidence is not uncommon in proceedings before this Tribunal. Senior Member McCabe (as he then was) commented on this state of affairs in Montesalvo and Australian Postal Corporation [2011] AATA 319 at [14]:

    The Tribunal is not in the business of definitively resolving scientific or medical disputes. My task is to determine whether I am satisfied the applicant’s shoulder condition – however it is described – arises out of her work. Sometimes, if the state of the science is uncertain, the Tribunal will be incapable of being satisfied that an applicant’s condition is attributable to a work-related incident. On other occasions, the Tribunal will be expected to make a decision without waiting for the final word from the experts. As scientific knowledge evolves, it may become apparent that the Tribunal has wrongly concluded that a connection between a work-related incident and a condition does (or does not) exist. That is regrettable, but we must work with the evidence available to us and do the best we can. The important thing, though, is that there must be credible evidence upon which the Tribunal can form a view that there is a connection: see Provost and Repatriation Commission [2001] AATA 153 at [42].

19. In determining whether Mrs Blake is owed compensation under s 14 of the Act for an injury (which includes a disease), I must have regard to s 5B:

    (1) In this Act:

    “disease” means:

    (a) an ailment suffered by an employee; or

    (b) 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.

    To find that her claimed condition was contributed to, to a significant degree, by her military service, I must reach a positive state of satisfaction that, on the balance of probabilities, her service contributed to that degree to the lower back pain she described. Section 5B(3) of the Act defines significant degree to mean a degree that is substantially more than material. The necessary state of satisfaction will not be reached merely through conjecture or speculation: Beezley. The contribution from her military service may be either direct or indirect, through the contribution of the service-related conditions for which the Commission has already accepted liability.

20. Taking the evidence as a whole, I have difficulty reaching the necessary state of satisfaction that Mrs Blake’s military service has contributed significantly to her present back condition. In essence, the medical evidence in support of her claim lacks the degree of persuasion I would regard as giving me comfortable assurance of their truth. Prof Fielding asserts the necessary connection by concluding There is no history of any other cause/trauma to the L/S Spine, by which she appears to be postulating a connection between the accepted condition and the claimed condition based on the lack of any better evidence. Since she was not called to give evidence, the opportunity to examine her more fully on what she meant was not provided.

21. Dr McEntee did appear to be suggesting a contribution of up to 20 percent to her claimed condition from her military service, but this conclusion seems to have been based only on the possibility of a contribution from her accepted condition – a contribution which he also notes is not supported by the published literature. Overall, I do not regard his evidence as being sufficiently clear on this question to say that, on the balance of probabilities, he thought her military service made a significant contribution to her present condition.

    Conclusion

22. Mrs Blake’s position derives little comfort from the remainder of the evidence. Accordingly, I affirm the reviewable decision of the Commission of 1 July 2015.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

.................................[sgd].......................................

Associate

Dated 28 June 2016

Date of hearing	31 March 2016
Advocate for the Applicant	David Williams (Returned & Services League of Australia)
Advocate for the Respondent	Ben Dube
Solicitors for the Respondent	Sparke Helmore