Burns and Military Rehabilitation and Compensation Commission (Compensation)
[2018] AATA 35
•17 January 2018
Burns and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 35 (17 January 2018)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2015/6312, 2016/2892, 2016/2893, 2016/2894
Re:Steven Burns
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Senior Member T. Tavoularis
Date:17 January 2018
Place:Brisbane
The decisions under review are affirmed.
........................[sgd]................................................
Senior Member T. Tavoularis
COMPENSATION – claim for compensation and rehabilitation for injuries – iliotibal band syndrome and osteoarthritis of both left and right knee – whether conditions are service-related – whether the Applicant is entitled to compensation for injuries – whether Applicant is entitled to compensation for permanent impairment – whether Applicant entitled to compensation for non-economic loss – consideration of section 14 of the Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 – applicability of the Compensation (Commonwealth Government Employees) Act 1971 – which legislative provisions applied – whether the Applicant was entitled to a lump sum payment under the 1971 Act – whether Applicant was permanently impaired – osteoarthritis conditions were not service-related – no liability under section 14 – Applicant was not permanently impaired – Applicant is not entitled to a lump sum payment under the 1971 Act – decisions under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 5, 27, 29, 30, 31, 39
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) s 14
Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (Cth) ss 5A, 5B, 7, 14, 24, 27, 124
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) Schedule 1, Pt 2, item 41(1)Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017 (Cth)
CASES
Australian Postal Corporation v Oudyn
(2003) 73 ALD 659
Rana and Military Rehabilitation and Compensation Commission[2010] AATA 937
Repatriation Commission v Gorton (2001) 110 FCR 321SECONDARY MATERIALS
Hansard, Tuesday, 5 September 2017, p 6382, Parliament of Australia, 2017, Bills of the current Parliament: Safety, Rehabilitation and compensation Legislation Amendment (Defence force) Bill 2017, Parliament of Australia, 2017, FOR DECISION
Senior Member T. Tavoularis
17 January 2018
INTRODUCTION
It is accepted that Mr Steven Burns (the “Applicant”) served in the Australian Army from
1 October 1980 to 1 October 1986 (the “eligible service”),[1] and seeks compensation for knee injuries allegedly connected to his eligible service. He disagrees with decisions made by Military Rehabilitation and Compensation Commission (“the Respondent”) regarding its liability to him.
[1] Exhibit 9, T 2, p 15.
The Applicant has four applications presently before the Tribunal, each of which is in relation to one of his knees. They are as follows:
·Application 2015/6312: Iliotibial Band Syndrome – Left Knee
·Application 2016/2892: Osteoarthritis of Left Knee
·Application 2016/2893: Iliotibial Band Syndrome - Right Knee
·Application 2016/2894: Osteoarthritis of Right Knee
History of Claims
To fully appreciate these claims, it is important to understand their history. I will now proceed to step through the Applicant’s history of claims. Each of the applications before the Tribunal was the subject of claims for compensation that have been determined and reconsidered by the Respondent as follows.
On 9 January 2014, the Applicant lodged two claims[2] for rehabilitation and compensation relating to: (1) an injury affecting his left knee, and (2) an injury affecting his right knee with the Department of Veteran’s Affairs (“DVA”).[3] In each of those claims, the Applicant specified that his injury arose whilst on duty playing authorised sport.[4]
[2] I note that a third claim was lodged in relation to the Applicant’s right shoulder condition. However, that claim was not propounded for determination in the hearing before me.
[3] See Exhibit 9, T4, pp 36 – 50; and T5, pp 51 - 56.
[4] See Exhibit 9, T4, p 39; T5, p 54.
On 7 August 2014, DVA wrote to Dr David Walters, an orthopaedic surgeon, requesting that he examine the Applicant and provide a comprehensive medical report responding to a schedule of questions.[5] Dr Walters examined the Applicant on 8 August 2014.
[5] See Exhibit 9, T6 and T7.
On 12 August 2014, the Applicant attended Queensland X-Ray, for examination of his right shoulder and both knees. The examining radiologist, Dr Neil Murphy, noted evidence of “Mild OA changes involving the medial joint space of both knees. The lateral and patellofemoral joints are intact. No joint effusion or significant soft tissue swelling. No focal bone injury in the knee.”[6]
[6] See Exhibit 9, T8, p 76.
On 24 September 2014, Dr Walters produced a comprehensive report of his examination.[7] Dr Walters opined that contemporaneous X-rays indicated early osteoarthritic changes in both knees. The further opinion of Dr Walters was that this was not related to the Applicant’s military service. It was his further view that the original diagnosis for both knees was actually that of Iliotibial Band Syndrome (“ITBS”), which gives rise to lateral knee pain, not the medial pain described by Dr Murphy.
[7] See Exhibit 9, T9, pp 77 – 100.
In relation to the right knee, Dr Walters opined:
The original diagnosis with both knees was Iliotibial Band Syndrome. This gives rise to lateral pain, not medial knee pain. The x-ray of the right knee in 1986, just prior to discharge from the military, showed no injury to the right knee. The recent x-rays show early osteoarthritis in both knees. The current right knee condition is not related to military service, in my medical opinion.[8]
[8] See Exhibit 9, T9, p 88.
In relation to the Applicant’s left knee, Dr Walters opined:
The original diagnosis with both knees was Iliotibial Band Syndrome. This gives rise to lateral knee -pain, not medial knee pain. The recent x-rays show early osteoarthritis in both knees. The current left knee condition is not related to military service, in my medical opinion.[9]
[9] See Exhibit 9, T9, p 82.
On 1 October 2014, the Respondent denied liability for the claimed conditions of (‘recurrent dislocation of the right shoulder’), ‘osteoarthritis of the right knee (medial compartment)’ and ‘osteoarthritis of the left knee (medial compartment)’, relying on the report of Dr Walters.[10]
[10] See Exhibit 9, T10, pp 103 – 105.
On 22 October 2014, the Applicant requested a reconsideration of the determination dated 1 October 2014. In requesting a reassessment of his left and right knee conditions, the Applicant stated that: “In my service medical discharge… it clearly states that I suffered trauma and injury to both knees whilst on duty.”[11] Further, he said: “… my current knee conditions are aggravations of my initial knee injuries suffered during my military service and whilst on duty, and also well documented in my medical records.”[12]
[11] See Exhibit 9, T11, p 106.
[12] See Exhibit 9, T11, p 107.
On 10 March 2015, the Respondent requested an additional medical opinion from the Departmental Medical Adviser, outlining the Applicant’s medical history for each of his claimed conditions.[13]
[13] See Exhibit 9, T12, pp 110 – 114.
On 12 March 2015, Dr Sasha Taylor, the contracted Medical Advisor, opined that the first diagnosed condition in relation to both the Applicant’s right and left knees was ‘lateral iliotibial band syndrome’. She was of the further view that this condition (to both knees) “… likely resolved at the end of 1983/start of 1984. There is no further mention of it being a problem in the medical notes after these dates.”[14]
[14] Exhibit 9, T 13, pp 116-117.
Dr Taylor agreed with Dr Walters opinion, and said:
Given the evidence and the early degree of osteoarthritis in the right [and left] knee[s], on the balance of probabilities, this is not related to the [Applicant’s] military service, which was relatively short lived (1980-1986) and involved office work in its latter half. Furthermore, the degree of changes seen on the x-ray of the right [and left] knee suggest a more recent onset, which on balance of probabilities, cannot be linked back to service 30 years ago.[15]
[15] See Exhibit 9, T13, pp 116 & 117.
In response to a specific question about the likely cause of these conditions, assuming they were not related to the Applicant’s military service, Dr Taylor thought “the most likely causes, on the balance of probabilities, are normal ageing and civilian employment in transport and logistics.”[16]
[16] Ibid.
On 13 March 2015 the Respondent made two decisions, respectively affirming the determinations dated 1 October 2014, which denied the Applicant’s claim for a left knee condition (diagnosed as osteoarthritis of the left knee – medial compartment),[17] and the Applicant’s claim for a right knee condition (diagnosed as osteoarthritis of the right knee – medial compartment).[18] The delegate was not satisfied that the Applicant’s claimed knee conditions arose out of or in the course of his military employment. Nor was the delegate satisfied that the Applicant’s defence service contributed to his knee conditions.
[17] See Exhibit 9, T14.
[18] See Exhibit 9, T15.
On 27 May 2015, the Applicant requested reconsideration of the decision dated 13 March 2015. The basis of the request was that the delegate had failed to consider the Applicant’s diagnosed conditions of ITBS and secondary osteoarthritis in both of his knees.[19]
[19] See Exhibit 9, T16, pp 135 – 136.
On 28 May 2015, a delegate of the Respondent emailed the Applicant in response to this request and advised if he wanted to appeal the reconsideration decisions dated 13 March 2015, an appeal to the AAT would be necessary. The delegate further advised that if the Applicant intended to make a claim for his conditions of ITBS of the left and right knee, he would have to lodge new claims for rehabilitation and compensation.[20]
[20] See Exhibit 9, T17, p 138.
On 4 June 2015, the Applicant wrote to the Respondent requesting that his knee conditions be re-assessed by another orthopaedic surgeon.[21]
[21] See Exhibit 9, T18, pp 142 – 144.
On 17 June 2015, the Applicant proceeded to re-file his respective claims for rehabilitation and compensation originally dated 3 January 2014, for conditions affecting his left and right knee.[22] He noted that he was specifically seeking a permanent impairment lump sum compensation payment for those conditions under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).[23]
[22] See Exhibit 9, T19.3 and T19.4.
[23] See Exhibit 9, T 9.1, p 147.
On 19 June 2015, the Respondent wrote to the Applicant indicating that given the further conditions of ITBS of the left and right knees, as diagnosed by Dr Walters, had not yet been addressed, a delegate would reconsider the determination dated 1 October 2014.[24]
[24] See Exhibit 9, T20 pp 173 – 175.
On 10 July 2015, the Respondent wrote to the Applicant and confirmed the reconsideration decisions dated 13 March 2015 in relation to the Applicant’s osteoarthritis of the left and right knee, advising that if he did not agree with those decisions he should appeal to the AAT. The delegate further noted that the diagnosis of ITBS right and left knee was not considered/disallowed by the primary delegate in the determination dated 1 October 2014, and advised that these conditions would be reconsidered.[25]
[25] See Exhibit 9, T 21 and T 22.
On 20 July 2015, the Respondent provided a further reconsideration of the determination dated 1 October 2014 in relation to the Applicant’s left knee conditions, and:
(a)varied the part of the determination, insofar as it was now determined that the Commonwealth was liable for the Applicant’s ‘lateral iliotibial band syndrome left knee’ (resolved 06/01/1984) condition;[26]
(b)affirmed the reconsideration decision dated 1 October 2014 that the Commonwealth was not liable for the Applicant’s osteoarthritis of the left knee (medial compartment) condition.[27]
[26] See Exhibit 9, T23, p 180.
[27] See Exhibit 9, T23, p 180.
On 22 July 2015, the Respondent provided a further reconsideration of the determination dated 1 October 2014 in relation to the Applicant’s right knee conditions, and:
(a)varied the part of the determination, in so far as it was now determined that the Commonwealth was liable for the Applicant’s ‘lateral iliotibial band syndrome right knee’ (resolved 06/01/1984) condition;[28]
(b)confirmed the reconsideration decision dated 1 October 2014 that the Commonwealth was not liable for the Applicant’s osteoarthritis of the right knee (medial compartment) condition.[29]
[28] See Exhibit 9, T24, p 190.
[29] See Exhibit 9, T24, p 190.
The Applicant subsequently applied for review of these decisions by the Tribunal. Two things followed:
(i)on 27 November 2015, he applied for review of the reconsideration decision dated 20 July 2015; and
(ii)on 2 February 2016, he filed further material the effect of which has been to consolidate the review of all reviewable decisions (in relation to his knees) comprising the two decisions of 13 March 2015, and the decisions of 20 and 22 July 2015.
A PRELIMINARY MATTER: NEW LEGISLATION
At the time of the hearing of this matter, and indeed over the course of time when submissions have been received, the relevant legislation was the SRC Act. However, on 14 September 2017, the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2017 (Cth) received assent.[30] The consequence of this Bill was to establish the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (“the DRC Act”), which replicates the provisions of the SRC Act in a separate Act.[31]
[30] See Parlinfo, Bills of the current Parliament: Safety, Rehabilitation and compensation Legislation Amendment (Defence force) Bill 2017, Parliament of Australia, 2017,
[31] See: Hansard, Tuesday, 5 September 2017, p 6382, Parliament of Australia, 2017,
While the substance of the SRC Act and the DRC Act is the same, it is nevertheless important for me to identify which legislative provisions the Tribunal must implement. Fortunately, there is authority from the Full Court of the Federal Court on this point. In Repatriation Commission v Gorton (2001) 110 FCR 321, the Full Court of the Federal Court found that the Tribunal must, in cases such as these, apply the law that is current at the date of the Tribunal’s consideration of the matter. Consequently, I will proceed on the basis that it is the provisions of the DRC Act that should be applied here, as my consideration falls after the date the DRC Act received assent.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant’s conditions of: (1) osteoarthritis of the left knee (medial compartment), and (2) osteoarthritis of the right knee (medial compartment), are service-related? and
(b)whether the Applicant is entitled to lump sum compensation impairments arising from his accepted conditions of (1) lateral ITBS (left knee), and (2) lateral ITBS (right knee)?
OSTEOARTHRITIS – LEFT KNEE (MEDIAL COMPARTMENT) AND RIGHT KNEE (MEDIAL COMPARTMENT)
Diagnosis and Date of Onset
It is not contested that the Applicant suffers from Osteoarthritis in both knees.[32] I therefore have no trouble in finding that the Applicant does in fact suffer from bilateral Osteoarthritis.
[32] Exhibit 8, [39].
The crucial question for the Applicant is when is the date of onset of his bilateral Osteoarthritis? The answer to this question dictates the legislative test that will be applied in assessing the Respondent’s liability for the Applicant’s bilateral Osteoarthritis condition.
The orthopaedic surgeon, Dr David Walters, has provided several reports in this matter. He is of the view that the Applicant’s osteoarthritis is essentially a constitutional condition that has arisen due to normal wear and tear and the nature of the Applicant’s remunerative employment since discharge. Dr Walters also thought “The date of onset is very vague because the condition came on very slowly.”[33] Dr Walters was also of the view that the constitutional nature of the condition is such that it would have developed over a long period of time since the Applicant’s discharge.[34]
[33] Exhibit 5, p 4 in response to question 2.
[34] Exhibit 6, p 3.
As mentioned above, the Compensation Medical Advisor, Dr Sasha Taylor, in response to the question of whether the Applicant’s minor osteoarthritis medial compartment injury is or is not related to his military service, responded as follows:
·I agree with Dr Walters’ opinion.
·Given the evidence and the early degree of osteoarthritis in the right knee, on the balance of probabilities, this is not related to the client’s military service, which was relatively short lived (1980 – 1986) and involved office work in its latter half. Furthermore, the degree of changes seen on the x-ray of the right knee suggests a more recent onset, which on balance of probabilities, cannot be linked back to service 30 years ago.[35]
[35] Exhibit 9, T13, p 116.
Dr Taylor made the same finding with regard to the Applicant’s left knee. Further, in response to this question: “If the condition is not related to the clients [sic] military service what is the likely cause i.e. normal age related condition, civilian employment etc …”, Dr Taylor said:
·The most likely causes, on the balance of probabilities, are normal ageing and civilian employment in transport and logistics.[36]
[36] Ibid.
Progressive x-ray reviews of each of the Applicant’s knees endorsed the findings of Drs Walters and Taylor that the osteoarthritis (to both knees) was constitutional and that it developed over a long period of time after the Applicant’s discharge from service. Dr Walters reviewed the various x-rays performed on the Applicant’s knees and concluded as follows:
There has been plenty of time to develop medial compartment osteoarthritis in the last 30 years. X-rays taken in 1980s showed no sign of injuries or other problems in the knee joint. The diagnoses supplied, that is, iliotibial band syndrome and hamstring strain, among others, may, or may not be true diagnoses.[37]
[37] Exhibit 5, p 4. Dr Walters reviewed the Service Medical Records relating to historical x-rays taken in 1986.
X-rays commissioned by Dr Walters in August 2014 refer to “Mild OA [osteoarthritic] changes involving the medial joint space of both knee… No focal bone injury in the knee.”[38]
[38] Exhibit 9, T8, p 76.
Dr Walters then had regard to the results of x-rays of both of the Applicant’s knees performed on 12 August 2016. The findings of those x-ray examinations, as explained by Dr James Fitzgerald, are as follows:
Findings
Right Knee
Tricompartmental degenerative changes noted. This most significantly involves the medial compartment where there is a mild varus deformity noted. There is also moderate degenerative change of the patellofemoral joint. There is a small joint effusion. There is no other focal abnormality.
Left Knee
Mild tricompartmental degenerative change noted predominantly involving the medial compartment. Mild varus deformity. No joint effusion evidence. There is no other focal bony or articular abnormality.[39]
[39] Exhibit 1(C).
With reference to the abovementioned x-ray results, Dr Walters opined:
The demonstrated changes on the x-ray compared with the x-ray I saw 2 years prior are the expected progression of the osteoarthritic process in the knee joints. The radiologist has commented that he [the Applicant] has a varus deformity, which increases the load on the medial compartment of the knee, which is the case with Mr Burns. The history I got from Mr Burns did not mention any particular traumatic injuries to the right knee whilst he was in the Forces and on the left knee, there was mention of a twisting injury on one occasion. There is no relationship between the operation on his left femur to the subsequent development of degenerative change in the knee. Dr Cook is, rightly, very vague about the connection between the military service and the osteoarthritis of the knees.
My opinion is that the progressing osteoarthritis is a constitutional condition, which he would have developed over the long period of time post his leaving the navy. Therefore, my opinions expressed in my previous reports stand unaltered.[40]
[40] Exhibit 6, pp 2 and 3.
As I recall the Applicant’s oral evidence at the hearing, he said that he had been self-administering treatment for his osteoarthritis and had been doing the same thing for his ITBS. The Respondent contends, rightly to my mind, that the Applicant’s evidence of self-administration of treatment should be treated with caution because: (1) it is not consistent with the contemporaneous records; and (2) the Applicant was unable to explain the basis of the difference between the respective treatments he self-administered for osteoarthritis and ITBS over the same period of time.
As noted by the Respondent,[41] Dr Walters is the only specialist who has considered and provided an opinion about the onset of osteoarthritis in both of the Applicant’s knees. The available treatment records seem suggestive of a more recent date of onset. There is a clear lack of medical or other records to demonstrate the Applicant either reported or received treatment for any knee complaints before 2015. It would appear the first time the Applicant either reported or received treatment for a knee condition was on 18 September 2015 following a fall. Dr Eugenia Haller noted that the Applicant experienced a fall after his knee “locked”.[42]
[41] Exhibit 16, p9.
[42] Exhibit 10.
Having regard to the totality of the evidence, I am of the view that the onset of the Applicant’s osteoarthritis in his knees was slow and, as noted by Drs Walters and Taylor, occurred sometime after his discharge from service in 1986. Further, the radiological evidence goes no further than to demonstrate early osteoarthritic change in 2015 and expected progression of that change in 2016. It is thus extremely unlikely that any aspect of this osteoarthritic condition can be linked back to his service between 1980 and 1986.
The Applicant propounded the evidence of Dr Maxwell who apparently was of the opinion that the onset of the osteoarthritic condition was in 2004. This interpretation was based, as it was, on the extract of the DVA form that Dr Maxwell completed in 2015.[43] The Applicant purports to refer to the DVA form completed by Dr Maxwell in 2015 and to define it as “a report from Dr LA Maxwell dated 4 May 2015 …”. Further, the Applicant contends “This is why Dr Maxwell, after reviewing the relevant x-rays of both knees, came to the conclusion that 2004 would be the appropriate date of onset of osteoarthritis of each knee.”[44]
[43] Exhibit 1(E).
[44] Exhibit 17, p 5.
I do not think the barely 2 page section of a DVA form apparently completed by Dr Maxwell in any way constitutes “a report” from that doctor. Nor is there any reference in that barely 2 page part of the DVA form to the fact that Dr Maxwell viewed “… the relevant x-rays of both knees…” and “…came to the conclusion…” about anything. Dr Maxwell has apparently completed part of a form and nothing more. I agree with the Respondent’s contention: there is no evidence to support any such review or detailed consideration by Dr Maxwell. Her evidence (if it gets that far) should be treated with caution. As noted by the Respondent:
9.1the Applicant has provided only an extract of a form completed by Dr Maxwell and there is no evidence before the Tribunal about the circumstances in which this form was completed, the material available to Dr Maxwell in completing this form or whether this does reflect Dr Maxwell’s opinion
9.2it is not clear from this form that Dr Maxwell was providing any opinion about onset of the Applicant’s osteoarthritis, and
9.3there is no evidence before the Tribunal that Dr Maxwell considers the Applicant’s osteoarthritis is secondary to his ITBS, but in any event, Dr Walters specifically considered this and rules out any connection.[45]
[45] Exhibit 18, [9.1]-[9.3].
Accordingly, I do not accept the barely 2 page section of a DVA form apparently completed by Dr Maxwell is sufficiently well-informed to date the onset of the Applicant’s Osteoarthritis specifically to 2004.
The weight of the above evidence draws me to the conclusion that the Osteoarthritis in the Applicant’s knees did not manifest until well after his relevant period of service. I am further satisfied that its onset was not before 1 December 1988. However, I am equally satisfied that, due to the slow, gradual degenerative nature of the Applicant’s condition, on the balance of probabilities, the date of first onset of the Applicant’s left and right knee Osteoarthritis was prior to 13 April 2007.
Relevant Legislative Framework
Section 14 of the DRC Act outlines the Commonwealth’s liability to compensate for injuries as follows:
14 - Compensation for injuries
1Subject to this Part, [the Respondent] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
2Compensation is not payable in respect of an injury that is intentionally self-inflicted.
3Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Federal Court authority has established that once liability has been accepted for an injury under s 14 of the SRC Act, which is identical to s 14 of the DRC Act, liability under that that section cannot be reconsidered unless it is claimed that the original decision accepting liability was made in error.[46]
[46] See Australian Postal Corporation v Oudyn (2003) 73 ALD 659 (“Oudyn”).
The definition of ‘injury’ is expanded upon in s 5A of the DRC Act, as follows:
injury means:
(a)a disease suffered by an employee; or
(b)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; 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.” (my underlining)
For the purpose of clarity, s 5B of the DRC Act, defines ‘disease’ as follows:
1In 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.
2In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
3In this Act:
significant degree means a degree that is substantially more than material.” Applicability of the “material contribution” test
The test to be applied in assessing the compensability of the Applicant’s bilateral osteoarthritis depends on the date of its onset. This is because s 7(4) of the DRC Act provides that a person:
shall be taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
As pointed out above, I am satisfied that the Applicant’s bilateral osteoarthritis condition had its onset after 1 December 1988. For the purposes of this decision, I am also of the view that this bilateral osteoarthritis condition had its onset – that is, it first resulted in the impairment of the Applicant – before 13 April 2007.
The import of this is that the definition of “disease” presently contained in the DRC Act only applies after the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) received Royal Assent:[47] after 13 April 2007. The previous test was that the disease was “contributed to in a material degree” by the Applicant’s service.[48] This is a rather lower standard than “contributed to, to a significant degree”, the test under the DRC Act.[49] As a consequence, I must be reasonably satisfied that the Applicant’s bilateral osteoarthritis condition was contributed to in a material degree by his service.
[47] Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) Schedule 1, Pt 2, item 41(1).
[48] The SRC Act, s 4(1) (as before 13 April 2007). For more discussion of this, see Rana and Military Rehabilitation and Compensation Commission [2010] AATA 937, [62]-[67].
[49] The DRC Act, s 5B.
The resulting enquiry for the Tribunal now is to examine the available evidence and to determine whether it does or does not support any connection between the Applicant’s service and his bilateral osteoarthritis condition. As noted by the Respondent, this means that regardless of the test applied, the outcome will necessarily be the same.[50]
[50] If the finding was that the onset of the condition occurred before the introduction of the SRC Act on 1 December 1988, then the test set out in s 29 of the 1971 Act would apply. Application of that test would mean the Applicant’s service need only be a contributing factor in the contraction of the disease for the bilateral osteoarthritis condition to be compensable.
How did the Applicant’s Employment Contribute to His Osteoarthritis?
The Applicant’s primary contention is that his osteoarthritis was the result of injuries to his knees suffered during the course of his service. His primary document in support of this contention is a short letter dated 29 August 2016 from the orthopaedic surgeon, Dr Cameron Cooke, to his general practitioner, Dr Shaw. In that letter, Dr Cooke says:
…Dear Barry:
Re: Mr Steven Burns
DoB: 31/08/57
Date of Consultation: 25/08/16
Follow Up Consultation:
Steven has asked me to send you a note concerning his arthritic knees. He has shown me the Army records, and some of the injuries described may have resulted in post traumatic degenerative change within his knees.
Please do not hesitate to contact me if you wish to discuss this case further.
Yours sincerely
Dr Cameron Cooke
Consultant Orthopaedic Surgeon.[51]
[51] Exhibit 1(C).
After reviewing the Applicant’s service medical records and taking into account the evidence of the Applicant suffering a number of minor knee injuries during service, Dr Walters provided his opinion about the cause of the Applicant’s osteoarthritis. His oral evidence at the hearing was entirely consistent with his written reports. Importantly, when asked about the records relating to the Applicant’s knee injury during service, Dr Walters said that simply because a person has had a knee injury does not automatically give rise to a presumption that they will develop osteoarthritis. Dr Walters therefore consistently maintained his opinion that the Applicant’s osteoarthritis was not caused by his service despite the contents of the Service Medical Records.
In his report of 24 September 2014,[52] Dr Walters responds to the following questions on the specific issue of causation:
[52] Exhibit 9, T9, pp 82 and 83.
5. To what extent do you consider that service in the Australian Defence Force (ADF) contributed to the causation or the aggravation, acceleration or recurrence of the condition? (Please place condition number against the relevant percentage.)
Causation Aggravation/Acceleration/Recurrence
(a)0% (a) 0%
(b)1 – 9 % (b) 1 – 9%
(c)10 – 20% (c) 10 – 20%
(d)21 – 50% (d) 21 – 50%
(e)Greater than 50% (e) greater than 50%
Note: If you believe the member’s service contribution was 0% and that the member would have suffered from the condition regardless of his or her service in the ADF, please do not answer any further questions but sign, date and return this form.
Causation: 0%
Aggravation: 0%.
6. How would you describe the extent of such condition? (Please use no more than 3 words per condition number.)
none trivial negligible
very minor insignificant unimportant
inconsequential incidental minor
moderate significant influential
substantial important major
principal no other causeCausation – None
Aggravation/acceleration – None.
7. For the condition(s) claimed, please describe how this injury or illness was caused, aggravated, accelerated or recurred as a result of ADF employment related factors. Please do so in terms of the underlying condition, its symptoms and functional impact.
Not applicable. The condition is not related to military employment.
In his report of 5 July 2016,[53] Dr Walters responds to the following question about the time of onset of the osteoarthritis condition:
2. Specifically, do you remain of the view that Mr Burns’ osteoarthritis is of recent onset and/or are you able to provide an opinion as to the likely date of onset?
His osteoarthritis is not of recent origin, but has arisen in the last 20 or 25 years, gradually, due to normal wear and tear and his occupation since he left the forces. The date of onset is very vague because the condition came on very slowly.
[53] Exhibit 5, p 4.
In his report of 25 October 2016,[54] Dr Walters opines that “…the progressing arthritis is a constitutional condition, which he would have developed over the long period of time post his leaving the navy.”
[54] Exhibit 6, p 3.
Dr Walters clearly finds that the Applicant’s bilateral osteoarthritis:
(i)is not connected in any way to his service from 1 October 1980 to 1 October 1986;
(ii)is a constitutional condition; and
(iii)is secondary to 30 years of post-service wear and tear.
The Respondent, most probably out of an abundance of caution, is keen to address a perceived “inconsistency” between the respective opinions of Dr Walters and Dr Cooke. While I appreciate that caution, I think it is hardly necessary. Dr Cooke does not make any finding nor express any opinion. He raises a possibility of a connection between the injuries described in the Applicant’s Service Medical Records and the osteoarthritis condition and nothing more. Dr Cooke has nothing to say about any probable or demonstrable connection between this condition and the Applicant’s service. Comparatively, Dr Walters expresses a definitive opinion that the condition has nothing to do with the Applicant’s service. Thus, there is no inconsistency between the view of Dr Walters and Dr Cooke. The latter does not produce any opinion on which a decision maker can satisfactorily ground a finding of a probable connection of the condition with the Applicant’s service.
The Respondent has also helpfully summarised the key parts of the Service Medical Records in its Submissions.[55] Those records, in my view, go no further than to indicate that the Applicant suffered only minor injuries during his service, that they resolved either spontaneously or with limited treatment and otherwise had no residual effects on him.
[55] Exhibit 16 , pp 12 – 14.
Shortly prior to his discharge in 1986, a comprehensive medical assessment was undertaken on the Applicant. At item 65 of that assessment,[56] the examining medical officer notes “Several minor knee injuries. No sequelae.” The Applicant, somewhat disingenuously, sought to sustain a proposition that this particular medical assessment referred to “major” injuries. Under cross-examination, he conceded the reference in the abovementioned records could actually be to “minor” injuries. The same can be said of radiological investigations on the Applicant’s right knee contemporaneous with his discharge: “No bone or joint lesion is seen” was the comment of the relevant medical officer.[57]
[56] Exhibit 9, T3, p 33.
[57] Exhibit 9, T3, p 32.
I agree with the Respondent’s contention that the Service Medical Records do not contain any other evidence to support the Applicant’s contention that he suffered major injuries during service. His evidence about these records under cross-examination was curious and difficult to follow. He refused to exclude any other injuries during the course of his service despite (1) being taken through the records in some detail; (2) being unable to specifically recall any other incidents or injuries and (3) eventually accepting that these records could very well comprise a complete record of his injuries that occurred during service.
The Applicant sought to propound a two pronged contention that his osteoarthritis is a secondary condition to either (1) his accepted ITBS and/or (2) the osteochondroma that was excised in September 1984. The first part of the contention is squarely dealt with by Dr Walters in 2014 who is of the view that:
Left Knee - …The pain is medial in the knee. He cannot run and cannot walk fast. The knee occasionally gives way with a loud click.
Right Knee - He twisted his right knee at football in 1983. He has not had surgery on this joint. He gets medial pain and clicking. There is no locking and no giving way. Both knees swell.
It should be noted that the original diagnosis with both knees was Iliotibial Band Syndrome.
……
INVESTIGATIONS
I have now seen x-rays of… both knees performed on 12 August 2014.
….
X-ray of both knees show mild narrowing of medial compartments on weight bearing view, but no other. This is an early osteoarthritic change.
SUMMARY AND ASSESSMENT
…
The x-ray of the right knee in 1986, just prior to discharge from the military, showed no injury to the right knee. The recent x-rays show early osteoarthritis in both knees. The current knee conditions are not related to military service, in my medical opinion.[58]
[58] Exhibit 9, T9, pp 78 and 80.
Conclusion: Left and Right Knee Osteoarthritis
Having regard to the totality of the medical evidence, and in consideration of the above, I am of the view that the Applicant’s service has not contributed to either a material or a significant degree to his condition of Osteoarthritis of his left and right knees. I therefore find that the Respondent is not liable pursuant to s 14 of the DRC Act for the Applicant’s Osteoarthritis conditions.
ISSUE 2 – CAN THE APPLICANT BE COMPENSATED FOR IMPAIRMENTS ARISING FROM THE ACCEPTED CONDITIONS OF (A) LATERAL ITBS (LEFT KNEE) AND (B) LATERAL ITBS (RIGHT KNEE)?
The Applicant seeks lump sum compensation for lateral ITBS in each of his knees. The Respondent has accepted liability for these conditions, but denies that the Applicant is entitled to compensation for them.[59] Prima facie, once liability has been accepted for an injury under s14 of the SRC Act (given their provisions are identical, presumably this carries over to the DRC Act), that liability continues for the life of the employee. However, such determination made under s 14 of the SRC Act can be reconsidered in circumstances where the original decision accepting liability was made in error. Specifically, such a finding of error necessitates a finding of fact by the Tribunal, properly informed by the medical evidence that either (1) a condition has resolved, or (2) has no ongoing effects for an Applicant such as to give rise to a specific entitlement to compensation.[60]
[59] Exhibit 16, [72]-[73].
[60] Australian Postal Corp v Oudyn (2003) 73 ALD 659.
The Respondent has not sought to ventilate that the reviewable decisions were made in error. Rather, it denies that the Applicant is entitled to the compensation he seeks. This is a different matter. Consequently, the question for the Tribunal in this issue, then, is whether the Applicant is entitled to lump sum compensation for lateral ITBS in each of his knees.
For the following reasons, I find that the Applicant is not entitled to the lump sum compensation for his lateral ITBS conditions.
Relevant Legislative Provisions
As the Applicant’s service predates the commencement of either the SRC Act or the DRC Act, there is a very real question as to which legislative provisions should be applied in determining whether he is entitled to compensation for his lateral ITBS conditions.
Transitional Legislative Provisions
Section 124 of the DRC Act contains certain transitional provisions which are relevant to the matter currently before me. Section 124(1A) of the DRC Act provides that a person is entitled to compensation under that Act in respect of an injury, damage or loss suffered before the commencement date of the SRC Act (on 1 December 1988). The first relevant question, then, is when did the Applicant suffer his lateral ITBS conditions?
When did the Applicant first Suffer his Lateral ITBS Conditions?
The Applicant contends that he first suffered ITBS in his knees in 1983.[61] This contention is corroborated by Dr Walter’s report of 24 September 2014,[62] where he noted that the Applicant injured his left and right knees around 1984, and 1983, respectively.[63] Dr Walter noted that “the original diagnosis with both knees was Iliotibial Band Syndrome. This gives rise to lateral pain, not medial knee pain.”[64] The Respondent, correctly in my view, accepted that the Applicant first suffered ITBS in 1983.[65]
[61] See e.g. Exhibit 1A.
[62] Exhibit 9, T 9 pp 77-100.
[63] Ibid, p 78.
[64] Ibid.
[65] Exhibit 16, [72].
In consideration of the above, I find that the Applicant first suffered his lateral ITBS conditions in or around 1983. Consequently, in accordance with s 124 of the SRC and DRC Acts, as the Applicant suffered his ITBS conditions before 1 December 1988, the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) apply.
Entitlement to Lump Sum Compensation – The Relevant Legislative Framework
In accordance with s 124 of the DRC Act, if someone is to qualify for compensation under a previous Act, the qualifying point is that compensation was or would have been payable in respect of that injury under the applicable Act in force at that time. Section 124(3) of the DRC Act provides that a person will not be entitled to lump sum compensation where the impairment became permanent prior to 1 December 1988 and the relevant predecessor compensation legislation did not provide for the payment of such lump sum compensation.
The 1971 Act
The 1971 Act addresses the Commonwealth’s liability for personal injuries during the period 25 May 1971 to 1 December 1988.
In particular, sub-section 27(1) of the 1971 Act established the Commonwealth’s liability for personal injuries. Sections 29 – 31 of the 1971 Act address the Commonwealth’s liability for diseases contracted by an employee.
Section 5(1) of the 1971 Act defines:
· “injury” to mean “any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 does not include a disease or the aggravation, acceleration or recurrence of a disease”;
· “disease” to include “any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development”.
The concept of permanent impairment
In order to obtain the lump sum compensation he seeks under the 1971 Act, the Applicant must satisfy the requirements of s 39 of the 1971 Act. Section 39(4) of the 1971 Act deals with injuries that result in a permanent loss to the employee. Section 39(3) of the 1971 Act is the provision that facilitates payment of compensation to employees who can demonstrate such permanent loss. Section 39(11) of the 1971 Act provides that compensation is also payable in respect of an injury resulting in permanent partial loss by an employee of the efficient use of a part of the body specified in Section 39(4), or the efficient use of such a part of the body for the purposes of the employee’s employment immediately before the injury.
Consequently, I now turn to addressing whether the Applicant suffers from a “permanent impairment” for the purposes of s 39 of the 1971 Act.
Permanent Impairment: the Medical Evidence
Dr Walters
In his report of 24 September 2014, Dr Walters noted some mild narrowing of the medial compartments of both of the Applicant’s knees but nothing else of any moment. Dr Walters also noted some early osteoarthritic change. As mentioned above, Dr Walters was also of the view that x-rays of the right knee in 1986 just prior to the Applicant’s discharge, showed no injury to the right knee. He further noted that the Applicant undertook surgery to his left knee in September 1984 but, thereafter, that he “improved significantly”.[66]
[66] Exhibit 9, T9, pp 78 and 80.
Dr Walters is clear in his opinion that the development of medial compartment osteoarthritis has occurred in the last 30 years – following the completion of the Applicant’s period of service. Further, Dr Walters thought the Applicant’s bilateral osteoarthritis was a “secondary condition”, with the original diagnosis being that of ITBS in both knees.[67] Dr Walters is clearly of the view that “The secondary nature of the osteoarthritis of the knees is due to 30 years of wear and tear since his discharge from military service”.[68] He emphasises that ITBS gives rise to lateral knee pain, not medial knee pain.[69] His rationale for this finding is that the iliotibial band is outside the knee joint and, as such, it cannot be the cause of osteoarthritis within the knee joints of the Applicant. Thus, concludes Dr Walters, as the cause of any impairment the Applicant suffers in his knees is osteoarthritis, there is no residual impairment to the Applicant as a result of the originally propounded diagnosis of ITBS.[70]
[67] Ibid, p 87.
[68] Exhibit 5, p 3.
[69] Ibid, p 82.
[70] Exhibit 5, p 5.
It should also be noted that in addition to his finding that the medial compartment osteoarthritis is due to normal wear and tear since the Applicant left the forces, Dr Walters is of the further view that the ITBS diagnosis may not be a true diagnosis.[71]
[71] Exhibit 5, p 4.
Dr Taylor
Her evidence is, to my mind, entirely consistent with that of Dr Walters. In response to the following question (relating to both of the Applicant’s knees), Dr Taylor opined as follows:
2. …. Is the client still currently suffering from ITBS? If not, when did it likely resolve? If you have provided an alternate diagnosis of the right knee from the client’s military service please advise if he is still currently suffering from that condition? If not, when did likely [sic] resolve?
·On the available evidence, the client is no longer suffering from ITBS. He now complains of medial knee pain, which as stated by Dr Walters, is inconsistent with ITBS which gives lateral pain.
·The ITBS likely resolved at the end of 1983/start of 1984. There is no further mention of it being a problem in the medical notes after these dates. Furthermore, by September 1986, there is a medical review which mentions a history of several minor knee injuries with no sequelae.
….
4. If the condition is not related to the clients [sic] military service, what is the likely cause i.e. normal age related condition, civilian employment etc…
·The most likely causes, on the balance of probabilities, are normal ageing and civilian employment in transport and logistics.[72]
[72] Exhibit 9, T13, pp 116 – 118.
The Service Medical Records
These records do little more than confirm the resolution of the Applicant’s ITBS to be consistent with the usual course and nature of this injury. First, it should be noted that there is nothing in these records to indicate the Applicant received any treatment for the propounded ITBS after 1983. Secondly, in his oral evidence, Dr Walters was of the view that cases of ITBS usually resolve within a matter of months of the injury with either no treatment or conservative treatment. It is difficult to escape the contentions of the Respondent in this regard. They may be summarized as follows:
The Service Medical Records make clear that the cause of the Applicant’s ITBS was consistent with this [i.e. Dr Walters’ abovementioned oral evidence about resolution of episodes of ITBS], noting that presentations for knee pain in 1984 were in the context of the identified and excised osteochondroma of the Applicant’s left distal femur and presentations in 1986 relating to knee were both in the context of specific, minor football injuries with x-rays suggesting no abnormality. The available Medical Board examinations confirm this noting that comprehensive health assessments undertaken in 1984, 1985 and 1986 either relevantly refer to no abnormality in the lower limbs or abnormality only in the context of osteochondroma and, by 1986, records a history of a series of minor knee injuries with no sequelae.[73] [footnotes omitted]
[73] Exhibit 16, [79].
Dr Shaw
The ITBS condition was accepted by the Respondent on 20 July 2015. The Applicant first presented at Dr Shaw’s rooms complaining of ITBS on 28 July 2015. Dr Shaw noted “…also has bilateral knee problems with iliotibial band both knees queerying [sic] meniscal damage to both knees”.[74] It seems Dr Shaw was prepared to adopt a diagnosis of ITBS without any ancillary or independently commissioned investigations to confirm that diagnosis. Dr Shaw also seems to automatically adopt a diagnosis of ITBS when one has regard to the management regime that he proposed:
Management:
…
MRI both knees – covered by iliotibial band (my underlining)[75]
[74] Exhibit 10.
[75] Ibid.
The subsequent entries relating to the Applicant’s consultations with Dr Shaw do not make reference to any bilateral arthritic condition of either of the Applicant’s knees. For example:
·on 8 September 2015, the Applicant saw Dr Shaw and the reason for that contact was “Bilateral Knee Osteoarthritis”. In his summary of the consultation, Dr Shaw noted that the Applicant “has had xray and MRI both knees these show degenerative changes both knees …. no evidence of major meniscal problems”;
·on 18 September 2015, the Applicant saw Dr Eugenia Haller and reported that he “has had a fall after knee lock …. swelling pain difficult wght [sic] bearing”;
·on 21 September 2015, the Applicant saw Dr Eugenia Haller who noted “R knee injury seing [sic] dr cook tonight …. hardly wght [sic] bearing …. knee lock at 40 dgr”;
·on 28 September 2015, the Applicant saw Dr Eugenia Haller who noted “has seen dr Cook… new MRI which shows severe degeneration and new MCL tear …. suggested physio or knee reconstruction… preferrs [sic] physio at this stage;
·on 1 October 2015, the Applicant saw Dr Eugenia Haller who noted this history “R knee effusion an following an injury on a background of degenerative disease … swelling effusu=ion [sic] aggravated… seeing physio next week”.[76]
[76] Exhibit 10, pp 8 – 11.
Two things are notable from Dr Shaw’s records[77]:
(1) the first report of any iliotibial band - derived symptoms occurs roughly 1 week (i.e. on 28 July 2015) after the condition was accepted by the Respondent; and
(2) the Applicant’s history of reported symptoms to Dr Shaw/his clinic prior to 28 July 2015 related to respiratory complaints, false aneurysm or Haematoma, nausea/diarrhoea, right ankle sprain, pain in right elbow, cholesterol testing and reduction.[78]
[77] Or perhaps, more correctly, the records of the Morningside Family Medical Centre, where Dr Shaw and Dr Haller both practise – Exhibit 10.
[78] Ibid: pp 11 – 16.
Taken in totality, Dr Shaw’s records ought be approached with caution because (1) any reference to osteoarthritic symptoms in his knees occurs by way of self-reporting by the Applicant to Dr Shaw/his clinic and (2) apart from one reference to “23 ileotibial bands”[79] [sic] in these records, there is little or nothing by way of independent investigatory confirmation of such a condition and, indeed, the clear theme of these records is one of degenerative changes to the Applicant’s knees. As noted by the Respondent, the Applicant was unable in his oral evidence to identify any other attendances upon Dr Shaw/ his clinic (or any other medical professional) for an example of independent verification or diagnosis of any osteoarthritic condition in his knees.[80]
[79] Put at its highest, this reference to “23 ileotibial bands” most relevantly relates to a Medicare claim item.
[80] Exhibit 16 [81].
Other contentions of the Applicant
The Applicant contends that correspondence drafted by Dr Shaw to support funding of certain aids for the Applicant’s ITBS ought be taken as evidence that he continues to suffer from this condition.
Two items of correspondence are relevant: first, Dr Shaw’s clinic (letter actually written by Dr Eugenia Haller) of 12 October 2015. The terms of that letter are as follows:
12/10/2015
TO WHOM IT MAY CONCERN
….
This is to confirm that Mr Steven Burns has attended this medical centre on the 12/10/2015 for medical attention.
He has presented to our clinic with right knee pathology from severe osteoarthritis causing significant dyscomfort [sic] and instability and leading to LCL sprain.
He will benefit from knee splint for support and stabilization, long term.
Yours sincerely
Dr Eugenia Haller[81] (my underlining).
[81] Exhibit 10.
Secondly, on 3 November 2015, Dr Shaw wrote a similar letter. The terms of that letter are as follows:
3/11/2015
TO WHOM IT MAY CONCERN
….
This is to confirm that Mr Steven Burns has attended this medical centre on 3/11/2015 for medical attention. He suffers from bilateral iliotibial bands which is an accepted condition for his white card. This can cause his knee to give way on him at any time as well as causing him considerable discomfort when walking and standing.
As a result of this he has difficulty when walking and maintaining his balance when doing his regular daily chores involving any degree of walking. He would thus benefit from a single point walking stick as well as a three wheeled walking frame to assist him with his balance and mobility.
Yours sincerely
Dr Barry Shaw[82] (my underlining)
[82] Exhibit 1(A).
It is clear from the terms of both abovementioned letters that neither of them constitutes evidence of any continuing condition of ITBS. Both letters are predicated on the basis of seeking funding for implements that, in the opinion of the authors would assist the Applicant. This is borne out by three things: (1) the phrase “accepted condition for his white card” in the latter item of correspondence. That is, both Dr Shaw and Dr Haller have written these letters with the Respondent’s then acceptance of ITBS on 28 July 2015 in mind; (2) the absence of any independent investigation, diagnosis and verification of such condition in the medical records of Dr Shaw/his clinic and (3) the Applicant’s inability during cross-examination to rebut the suggestion that the singular or predominant purpose of both letters was to obtain funding for treatment.
There is a similar dearth of medical evidence in any of the remaining material to rebut a finding that the Applicant’s ITBS was resolved in or around 1983 – 1984:
(a)Although he makes reference to “osteoarthritis knees” in his 3 Centrelink Medical Certificates appearing in the relevant bundle of records,[83] Dr Shaw makes no reference to ITBS as a medical condition impacting on the Applicant’s capacity to work or study. Dr Shaw identifies conditions in these reports as diverse as Meniere’s disease with associated vertigo and tinnitus, recurrent dislocation of the right shoulder, bilateral sensorineural hearing loss, post traumatic stress disorder, dizziness/ presyncope;
[83] Exhibit 10.
(b)the Applicant had 5 physiotherapy consultations with the physiotherapist, Sam Wood, during the period October – November 2015. The physiotherapist noted the Applicant’s past history to comprise “ITB and H/S injuries to R from rugby while in army, nil specific knee injuries reported”. As I understood the records of this physiotherapy clinic,[84] the physiotherapist wrote identical letters dated 9 November 2015 and 12 October 2015, respectively, to both the general practitioner, Dr Eugenia Haller, and the orthopaedic surgeon, Dr Cameron Cooke. In this letter, the physiotherapist notes the following:
[84] Exhibit 12.
On initial assessment the major findings were as follows:
…
-Hypertonicity and reactivity on palpation of lateral quadriceps and ITB
…
Treatment thus far has consisted of the following:
-Gentle soft tissue release of quads and ITB …
…
Based on progress thus far, I would appreciate your opinion on whether any further investigations or treatment techniques are warranted…[85]
[85] See Exhibit 12.
As outlined above, neither Dr Shaw nor Dr Haller initiated any ancillary or independent investigations to confirm any ongoing condition of ITBS and their medical records singularly or predominantly relate to degenerative changes in the Applicant’s knees.
(c)the orthopaedic surgeon, Dr Cameron Cooke, has seen the Applicant on at least 3 occasions, specifically, on 21 September 2015, 25 September 2015 and 6 November 2015. At the first consultation, Dr Cooke reviewed an MRI scan and noted “…moderately advanced degenerative changes within the knee joint”. He also said that he was organizing a repeat MRI scan “…as there is significant swelling in the knee suggestive of an acute injury.”[86] Dr Cooke said that he would see the Applicant again after this repeat MRI scan. Dr Cooke saw the Applicant for a second time on 25 September 2015 and “…identified advanced medial and patellofemoral compartment disease”.[87] Dr Cooke then saw the Applicant on 6 November 2015 and caused a certain letter to be forwarded, presumably to the DVA. That letter reads as follows:
[86] See Exhibit 11, p 5.
[87] Ibid, p 4.
10 November 2015
…
To Whom It May Concern
Re Mr Steven Burns
…
Steven has bilateral knee osteoarthritis. He reports he had an active service in the military and feels that he had significant injuries to his knees during this time. I believe that he should have an independent medical assessment by DVA, to determine whether his current knee osteoarthritis is related to his military service.
…
Kind Regards
Dr Cameron Cooke
Consultant Orthopaedic Surgeon[88]
[88] Ibid, p 3.
To the best of my understanding of the medical evidence, no independent diagnosis of any ongoing ITBS condition was sought by either Dr Shaw or Dr Haller from Dr Cooke or, indeed, any other independent orthopaedic specialist. As mentioned above, Dr Cooke referred the Applicant to the DVA for further assessment and reporting. There is, therefore, no evidence propounded by the Applicant to indicate or confirm the presence or continuation of any ITBS symptoms. It follows that the opinion of Dr Walters (supported and augmented by that of Dr Taylor) is the only specialist medical opinion about (1) the cause of the Applicant’s osteoarthritis and (2) whether ITBS remains part of the Applicant’s symptomatology.
I have recounted the evidence of Dr Walters (and that of Dr Taylor) earlier in these reasons. Based on the totality of the evidence, I am of the view that the Applicant’s ITBS resolved in or around 1983/1984. I am of the further view that it would be dangerous to displace this finding on the basis of the Applicant’s oral evidence to the effect that he has been self-administering treatment for this ITBS condition since his discharge. As noted by the Respondent (with whom I agree), such evidence is (1) not consistent with the contemporaneous records and (2) insufficiently explains how the Applicant’s self-administration of treatment for ITBS is different to the self-administered treatment for osteoarthritis over the same period of time.[89]
[89] See Exhibit 16, [85].
In submissions filed with the Tribunal post-hearing,[90] the Applicant sought to draw into question the evidence of Dr Walters on the basis that Dr Walters “…did, in fact, retire in June 2014.”[91] The assertion of Dr Walters’ retirement is not conceded by the Respondent. The Applicant put nothing about retirement to Dr Walters at the hearing nor did he ask Dr Walters how, if at all, his asserted retirement impacts upon his evidence. In his post-hearing submissions, the Applicant makes bald assertions about “retirement”, but offers nothing by way of explanation of how this, in any way, impacts on Dr Walters’ written and/or oral evidence.
[90] Exhibit 17 and Exhibit 19.
[91] Exhibit 19 p 1.
The “evidence” of Dr Walters’ retirement consists of a two-page news article, which lauds Dr Walter’s skill as a medical practitioner.[92] I cannot see how this untested “evidence” impacts upon the weight any reasonably-minded decision maker can allocate to Dr Walters’ evidence. If anything, it would add weight to his evidence. As mentioned earlier, apart from Dr Walters’ evidence, there is no other specialist medical evidence available to the Tribunal.
[92] Exhibit 19, final attachment.
In the final analysis, any assertion about the work status or modality of practice of Dr Walters goes nowhere because:
(a)It cannot, in any way, taint or constrain all or part of his written and/or oral evidence given throughout the history of this matter;
(b)It does not somehow cause his evidence to now be disqualified from consideration in the determination of the issues in this matter; and
(c)Any suggestion of retirement (which is not a finding I make) does not somehow ‘switch off’ or ‘detune’ the knowledge, competence and experience of a specialist medical professional – especially one as historically involved with this matter as Dr Walters has been.
Accordingly, I find that this submission of the Applicant goes nowhere.
Conclusion: Is the Applicant Eligible for Lump Sum Compensation for ITBS?
I am not satisfied that the effects of any ITBS condition propounded by the Applicant are ongoing and, as a consequence, I find that the Applicant does not have any impairment resulting from this ITBS condition. It necessarily follows that the Applicant has not suffered a permanent impairment – any impairment he may have suffered relating to his ITBS conditions has long since dissipated. He is therefore not entitled to compensation for any permanent impairment under s 39 of the 1971 Act. In my view, the totality of the medical evidence points to a finding that the Applicant’s symptomatology in his knees to be more likely a result of his non-service related osteoarthritis.
CONCLUSION
The respective decisions under review in the applications numbered 2015/5836, 2016/2892, 2016/2893 and 2016/2894 should be affirmed.
I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis
........................[sgd]................................................
Associate
Dated: 17 January 2018
Dates of hearing: 6 March 2017, 21 April 2017 Date final submissions received: 7 June 2017 Applicant: In person Advocate for the Respondent: Ms Fiona Dempsey Solicitors for the Respondent: AGS
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