Charles Gough and Military Rehabilitation and Compensation Commission

[2013] AATA 757

[2013] AATA  757

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3676
Re	Charles Gough
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Professor RM Creyke, Senior Member
Date	23 October 2013
Place	Canberra

The decision under review is affirmed.

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

Professor RM Creyke, Senior Member

Catchwords

COMPENSATION – military compensation – service in the Army Reserve – Paget’s disease – whether service contributed to condition to a material degree

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 14

Cases
Comcare v Canute (2005) 148 FCR 232

Comcare v Sahu-Khan (2007) 156 FCR 536

Kowalski v Military Rehabilitation and Compensation Commission (2010) 191 FCR 345

Re Dunstan and Comcare (2012) 130 ALD 370.

REASONS FOR DECISION

PROFESSOR RM CREYKE, SENIOR MEMBER

23 October 2013

1. Mr Charles Gough, born 1965, sought review of a decision of the Military Rehabilitation and Compensation Commission (Commission). On 15 February 2011, the Commission had denied liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) section 14 for his claim for compensation for Paget’s Disease, a disease of the bones. That decision was upheld on review on 11 July 2012.

2. Mr Gough sought further review of the decision by the Tribunal on 28 August 2012.  The matter was heard in Canberra, with Mr Gough’s evidence being given by telephone from Lightning Ridge, on 14 August 2013.  Closing submissions were heard on 16 October 2013.

   Background and evidence

3. Mr Gough enlisted in the Army Reserve Service on 17 February 1990.  He served in an infantry division. He was discharged on 2 October 1998.  His evidence was that he sought discharge because a compulsory level of fitness had been imposed during his period of service and he was unable, due to his non-military commitments, to reach and maintain the minimum fitness level.

4. Mr Gough gave evidence that on average, during his years of service, he provided about 50 days of Reserve Service annually.  That service was mostly undertaken on weekends.  However, on one or two occasions he had undertaken longer periods of service for either two or three weeks at a time.

5. Mr Gough advised that his Reserve Service involved rigorous exercise, including pack marches, running on hard surfaces, jumping from trucks, and being out on patrol for up to 18 hours a day with breaks.  Typically this occurred during one week of an intensive period of service.  The other week would be in barracks.  However, even during his time in barracks he would do physical training and other exercises for several hours a day. 

6. Mr Gough was involved in a parachuting accident in about 1992 when he injured his back.  The activity was not service-related. Mr Gough’s employment history outside his Army Reserve Service was principally as a farm labourer, or as a fitter and welder and doing machinery maintenance. Mr Gough is currently a teacher at Lightening Ridge Central School.

7. Mr Gough said he first noticed the symptoms of Paget’s disease in the mid-1990s and first sought medical treatment for the symptoms in 1998.  However, there are no medical records to substantiate this, despite Mr Gough’s efforts to obtain them.

8. Mr Gough, on 4 October 2013, provided an incident report,  dated 17 May 1996, relating to an occasion on service when he ‘landed incorrectly from a throw and jarred my back & neck – while doing unarmed combat’ and that he was not seen on that occasion by a medical officer. However, this did not indicate symptoms which could be related to Paget’s disease, nor that his Paget’s disease was due to an incident akin to this one, particularly as he did not seek medical attention at the time.

9. Mr Gough again complained about left hip pain in 2004 suffered he said for ‘5 years’.  An x-ray was taken on 20 July 2004 which identified ‘thickening of the femoral neck’, possibly due to ‘old trauma’, and some ‘narrowing of the left hip joint’ with ‘early loss of articular cartilage’. The report referred to a history of a ‘parachuting accident 12 years ago’.

10. The condition was not diagnosed until 2007, following a CT scan conducted on 13 March 2007, confirmed in a bone scan referred to in a report dated 26 July 2007, and Mr Gough was first prescribed medication in 2007 for the condition.

    Legislation

11. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 provides, as relevant, for compensation to be payable to a person who has suffered an injury resulting in incapacity for work. ‘Injury’ is defined in the Act.

    Issues

12. The issues are:

    ·What is the diagnosis for Mr Gough’s claimed condition?

    ·What is the appropriate date of injury for Mr Gough’s claimed condition?

    ·Was that condition materially contributed to by Mr Gough’s Army Reserve employment?

    ·Is the Commission liable to pay compensation, under section 14 of the Act, for Mr Gough’s claimed condition?

    Consideration

    The diagnosis of Mr Gough’s claimed condition

13. There was no dispute that the condition claimed by Mr Gough is Paget’s disease. Although the Tribunal has evidence that Mr Gough consulted his medical practitioner about hip pain in 2004, the report of the x-ray performed subsequently made no reference to Paget’s disease. A report by Dr Stephen Potter, rheumatologist, dated 23 May 2012 noted of the x-ray, ‘This is not diagnostic’. The first reference to ‘what appear to be changes of Paget’s disease of bone in the left proximal femur’ arose after CT imaging conducted on 13 March 2007.

14. The diagnosis of Paget’s disease was identified by bone density testing in July 2007, although Dr Welshman, the radiologist was not convinced that all was explained by Paget’s and said that the problem was ‘not typical of Paget’s disease’. Dr Stephen Potter, rheumatologist, reported on 23 May 2012, and concluded ‘possible Paget’s disease, not clinically active, not now treated’.   

15. Despsite some medical hesitation about the diagnosis, for the purposes of this matter, the Tribunal is satisfied, in the absence of a diagnosis of alternative conditions, that Mr Gough suffers from Paget’s disease and it so finds.

    What is the appropriate date of injury for Mr Gough’s claimed condition?

16. As the discussion under the previous heading indicates, the first positive diagnosis of Paget’s disease occurred on 13 March 2007. The Tribunal accepts the opinion of Dr Potter that the report of the plain x-ray conducted in 2004 was ‘not diagnostic’ although the report referred to problems in the area of the upper femur, and the left hip, the area of the body said to be affected by Paget’s disease.

17. Counsel for the Commission submitted that the date of injury was 26 July 2007, the date the possible Paget’s disease was confirmed in a bone scan. However, the Tribunal finds that 13 March 2007 is the date of injury.  That is the date on which Mr Gough’s complaint of symptoms first occurred.  On that date he first consulted his medical adviser about his symptoms, his medical adviser requested the x-ray, and that x-ray, despite not being diagnostic, first identified the condition as subsequently confirmed.

    Was that condition materially contributed to by Mr Gough’s Army Reserve employment?

18. The principal issue is whether Mr Gough’s Paget’s disease was contributed to, to the requisite degree, by Mr Gough’s Army Reserve Service.

19. The legal standard of proof to be applied is affected by the finding of the date of injury.  As the date of injury was in March 2007, it is the definition of ‘injury’ in the previous Act as in force in March 2007, which is relevant.  That Act defined a compensable ‘injury’ to include a ‘disease’.[1] A ‘disease’ means an ‘ailment … that was contributed to in a material degree’ by employment.[2] In turn an ‘ailment’ means, as relevant, ‘any physical … ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[3]

    [1] Act (as in force in March 2007) s 4(1) – definition of ‘injury’.

    [2] Act (as in force in March 2007) s 4(1) – definition of ‘disease’.

    [3] Act (as in force in March 2007 s 4(1) – definition of ‘ailment’.

20. Mr Gough’s Paget’s disease is a bone disease, being also a physical disorder, defect or morbid condition which is of gradual development.  Accordingly he is suffering from a ‘disease’ for the purposes of the Act.  That means in turn that in order to be successful Mr Gough must establish that his Paget’s disease has been materially contributed to by his employment.

21. The standard entailed by ‘material contribution’ was found to be an ‘evaluative threshold’[4] below which there is no compensation. In effect the standard is said to be best captured by the meaning in the Shorter Oxford English Dictionary, namely, ‘in a material degree; substantially, considerably’, based on an evaluation of all relevant factors.[5]  

    [4] Comcare v Canute (2005) 148 FCR 232 at [68] per French and Stone JJ; Comcare v Sahu-Khan (2007) 156 FCR 536 at [13] per Finn J.

    [5] Comcare v Sahu-Khan (2007) 156 FCR 536 at [13]-[16] per Finn J. See also Kowalski v Military Rehabilitation and Compensation Commission (2010) 191 FCR 345; Re Dunstan and Comcare (2012) 130 ALD 370.

22. Mr Gough’s submission was that the hard physical exercises, activities and patrols during service contributed to a material degree to his Paget’s disease. The Commission submitted that on the evidence, no causal link was clinically accepted, and as a consequence, there was no material contribution.

23. The Tribunal had been provided by Dr Potter with seven articles from internationally reputable journals which did not posit a causal connection between physical exertion and Paget’s disease.  In summary, the articles indicated that the cause of Paget’s disease is unknown. The strongest link scientifically related to familial or environmental factors.  Mr Gough’s evidence was that to the best of his knowledge there was no family history of Paget’s disease.

24. The environmental factors mentioned in the articles referred to viral conditions. Mr Gough has provided no evidence that he has experienced any of the viral conditions to which the articles refer. That view is supported by the report of Dr Gabor Major, rheumatologist, dated 6 February 2013.  Dr Major had earlier treated Mr Gough in 2008 and 2009.

25. Dr Potter, in his medico-legal report for the Commission dated 23 May 2012, also concluded that ‘The combination of [the] articles indicate that there is no evidence that the nature of Army duties or work incident or Army incident or trauma has a causative association with’ Mr Gough’s Paget’s disease. He concluded ‘Therefore the patient’s speculation is not supported by the medical literature’. He found that there was ‘Nil evidence’ that Mr Gough’s employment had either ‘caused’ or ‘aggravated, accelerated or caused [the condition] to recur’.

26. Although Mr Gough’s argument was that his Paget’s disease was caused by trauma which arose during service, there is insufficient evidence to satisfy the Tribunal, on the balance of probabilities, that there is any causal link between trauma and Paget’s disease. Nor is the Tribunal satisfied on the balance of probabilities that Mr Gough’s activities and exercises during his intermittent Army Reserve service were sufficiently arduous or frequent to have triggered the condition.

27. The Tribunal acknowledges that this is one of many cases in which the causes of the condition being unknown, it becomes very difficult for a person who has had service, to establish a sufficient connection for liability for compensation purposes to arise.

28. Accordingly the Tribunal finds that Mr Gough’s Paget’s disease was not materially contributed to by Mr Gough’s Army Reserve employment. The decision under review is affirmed.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.

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

Associate

23 October 2013

Date(s) of hearing	16 October 2013
Applicant	In person
Counsel for the Respondent	Kristy Katavic
Advocate for the Respondent	Stuart Marris
Solicitors for the Respondent	Sparke Helmore