Coward and Military Compensation Rehabilitation Service

[2005] AATA 1045

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1045

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2004/847

GENERAL ADMINISTRATIVE DIVISION		)
Re		Robin Coward

Applicant

And Military Compensation Rehabilitation Service

Respondent

DECISION

Tribunal Dr J Campbell, Member

Date20 October 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Dr J Campbell, Member

CATCHWORDS

COMPENSATION – disease – prior infection – contribution by employment - assessment of back and joint conditions – diagnosis of back and joint conditions - consideration of relationship of those nominated conditions to Mr Coward’s military employment – consideration of whether Mr Coward is entitled to payment of compensation for nominated conditions – decision under review affirmed – Mr Coward not entitled to payment of compensation for his conditions of reactive arthritis and osteoarthritis right knee.

Workers Compensation - 1971 Act

Safety Rehabilitation and Compensation Act 1988, section 124.

The Compensation (Australian Government Employees) Act 1971-1973 - Sections 5, 29, 39, 40.

Roncevich v Repatriation Commission [2005] HCA 40

Treloar v Australian Telecommunication Commission (1990) 26 FCR 316.

Favelle Mort Ltd v Murray (1976) 133 CLR 580

Tully and Comcare Q95./927 4 October 1996

Military Rehabilitation and Compensation Commission  v Wall [2005] FCAFC 127

Re Maliphant and Comcare [2004] AATA 232

REASONS FOR DECISION

20 October 2005 Dr J Campbell, Member     

Introduction

1.      Mr Coward served in the Army Corps of Engineers as a driver between April 1971 and April 1974.  On or about 13 September 1972 Mr Coward suffered an injury to his lower back lifting bridging materials while on army exercise in the Tully area.  On 22 September 1972 Mr Coward was admitted to the Tully Hospital because of continuing lower back pain.

2.      Mr Coward was transferred to a military hospital on 27 September 1972.  Subsequently over a period of two to three weeks Mr Coward developed swelling and complained of pain in the joints of the second and third toe of his left foot, right knee and left ankle.  Following lengthy clinical investigations, Mr Coward was diagnosed as suffering from a strain of the left sacro-illiac joint and polyarthritis of unknown cause.  Mr Coward had further hospital admissions for the latter condition prior to his discharge.

3.      Post service Mr Coward continued to experience three to four episodes of joint stiffness, joint swelling and joint pain annually, with each episode causing him to lose four to five days from work.  In 1992 Mr Coward was granted disability support pension on account of increasing disability.  Subsequently Mr Coward has noted pain as opposed to joint swelling being the major symptom in the five or six episodes experienced annually.

4.      The Military Compensation Rehabilitation Service (“MCRS”) accepted liability for Mr Coward’s left sacro-iliac joint pain for the period 13 September 1972 to 31 October 1972.  This aspect of Mr Coward’s compensation claim, while noted, was not further raised or considered during the hearing, with the decision determined remaining unaltered.  It is the failure by MCRS to accept liability to pay compensation for the condition of polyarthritis which Mr Coward seeks to challenge.

ISSUES

5.      The issues in this matter are:

(a)From what back and joint conditions does Mr Coward suffer?

(b)What is the relationship of those nominated conditions to Mr Coward’s military employment?

(c)Whether Mr Coward is entitled to any payment of compensation for the nominated conditions.

DECISION

6.      For the reasons stated later in this decision, I affirm that Mr Coward is not entitled to payment of compensation for his conditions of reactive arthritis and osteoarthritis right knee.

CONSIDERATION AND FINDINGS

Diagnosis of back and joint conditions

7.      Dr Douglas, a consultant surgeon, concluded on 11 October 1973 that Mr Coward suffered from a sprain of the left sacro-iliac joint as a consequence of the lifting incident on 13 September 1972.  I note that this opinion has been accepted and not seriously challenged subsequently, although Dr McGill in his written and oral evidence considered it possible that Mr Coward’s left sacro-iliac joint symptomology in September 1972 may have constituted symptoms of his then evolving arthritic condition.  I conclude that the diagnosis as made by Dr Douglas in 1973 remains the probable diagnosis of Mr Coward’s low back symptomatology nominated at that time.  As stated earlier the strain of the left sacro-iliac joint suffered by Mr Coward in September 1972 is not a contested issue between the parties in this hearing, with liability having been accepted, albeit for a closed period.

8.      In addressing the diagnosis of the major condition in this matter I have paid particular attention to the clinical history as described over time and to the Tribunal by Mr Coward, the military medical records., the opinions of the consultant rheumatologists (Drs Major, McGill, Professor Sambrook) and the extracts from Harrison Textbook of Medicine 2005 edition (Exhibit A5) and volume one Rheumatology third edition 2003.  I note that the opinion proffered by the three consultant rheumatologists is consistent as regards diagnosis of reactive arthritis.  The term reactive arthritis describes a condition in which polyarthritis (predominantly of lower limb and weight bearing joints) is preceded by an enteric or urogenital infection and occurring predominantly in individuals who have inherited the B 27 gene (Exhibit A5).  I note that the diagnostic labels made in the military medical records, although different, are not inconsistent with the now agreed terminology.  I conclude that for the reasons nominated above Mr Coward suffered from reactive arthritis in September 1972 and thereafter.

9.      I note the change in symptomology nominated by Mr Coward as occurring after finishing work with the railways and receiving disability support pension in 1992.  The change in symptoms relates to the appearance of joint pain as the major symptom with the joint swelling being minimal.  Further Mr Coward reports an increasing frequency of episodes each year for the last four or five years, with each episode responding to analgesic (codeine phosphate) as opposed to anti inflammatory medication.  Mr Coward also stated that he did not take continuous medication between episodes and that he had experienced difficulty (nausea) with some anti inflammatory medication (Naprosyn).  Mr Coward was particular in stating that the episodes have occurred five to seven times a year over the last four to five years and involve pain in the right knee, left ankle and toe joints, with a little pain and occasional swelling in his hands.

10.     Dr Major in his report of 21 January 2005 concludes that Mr Coward has had problems related to his reactive arthritis since his army service and that this had continued to the early 1990’s.  In more recent years the reactive arthritis has no longer been the problem and that he has now developed osteoarthritis, particularly in his right knee.  Dr McGill, in his two reports, also concludes that Mr Coward’s alteration in symptoms (pain becoming predominant) are consistent with an evolving degenerative osteo-arthritic condition with clinical onset in the early 1990’s.  Professor Sambrook, in oral evidence, stated that while he found no evidence of impairment of function of the right knee at clinical examination, he would not disagree with Dr Major as to the presence of an osteoarthritic condition in the right knee.

11.     In light of the stated evidence, I am satisfied on balance of probabilities that Mr Coward does suffer from osteoarthritis of the right knee and an evolving degenerative process involving the spine and weight bearing joints.

What is the relationship of the two conditions to employment?

12.     I have noted earlier that a diagnosis of reactive arthritis requires a prior enteric or urogenital infection.  Such enteric infections include infection by the Salmonella, Shigella, Yersinnia, Campylobacter and other enteric organisms, including some viruses, while urogenital infections include infection by Chlamydia and neissaria organisms.  Such infections are usually clinically apparent but in 10 percent of cases an individual is unaware of the infection (subclinical infection) (Exhibit A5).  Such infections are said to occur between a few days and weeks (Rheumatology Ext), one and four weeks (Harrison), days to four months and possibly 12 months (Professor Sambrook), days to at least six weeks (Dr McGill) prior to the onset of symptoms of the arthritis.

13.     I note from the evidence of Mr Coward and the military medical records that Mr Coward suffered a urogenital infection in October 1971, which was treated successfully with penicillin.  No actual organism was identified and the serology remained negative until a test in late July 1972 demonstrated a positive VDRL test.  A repeat test was reported as negative on 2 September 1972.  Mr Coward is also reported as suffering intermittent diarrhoea for a 12 month period prior to the onset of arthritic symptoms.  A barium enema examination performed in October 1972 did not report any abnormal findings.

14.     More importantly Mr Coward stated that he was unaware of any acute enteric or urogenital symptomology in the days, weeks and months prior to the onset of his arthritic condition.  The military medical records demonstrate a similar story.  In relation to the two conditions outlined I note that Professor Sambrook was the only clinician who considered that the genital infection in October 1971 may be possibly (albeit remote) implicated as the prior infection process.  I also note that Dr McGill did not consider the episodic diarrhoea suffered by Mr Coward as implicated as the prior infection process, as the cause of diarrhoea is often not viral and the diarrhoea condition appeared to reflect a chronic condition.  I accept the clinician’s analysis of each situation.

15.     In the light of the above analysis, and having further reviewed the military medical records, I find that there is an absence of medical evidence, which would permit a conclusion that Mr Coward suffered a clinically definable enteric or urogenital infection in the days, weeks or months (up to four) which would be said to have been implicated as the infection prior to the onset of arthritic symptoms.

16.     In such circumstances, and as evidenced by the material in evidence in this matter, I conclude that the prior infection, whether it be viral or bacterial, enteric or urogenital must have passed unnoticed by Mr Coward.  Support for such a finding is supported by both texts and both Professor Sambrook and Dr McGill as well as Mr Coward’s clinical history.

17.     In further addressing the issue of the reactive arthritis relationship to his employment, I note the following:

·     Mr Coward normally worked and resided at Lavarack Barracks, Townsville.

·     Mr Coward stated that he spent most of his off duty time at the barracks, apart from spending some hours in Townsville city on some Saturdays following fortnightly pay, when he would enjoy a meal and a few drinks.

·     An altercation with two military police in late August 1972 resulted in Mr Coward receiving a 14 day confinement to barracks punishment.

·     Mr Coward proceeded on exercise in the Tully area with some seven days of his confinement to barracks punishment remaining.  During the exercise Mr Coward served as the driver for the Officer Commanding, lived in a large tent and generally remained in the exercise area.  The weather was reported as being wet, with Mr Coward spending his time in the camp and exercise area.

18.     As a consequence of this history and the necessity for a prior infectious process to have occurred, Counsel for Mr Coward contends that the infection prior to the onset of the reactive arthritis would on probabilistic analysis have occurred during the period in which Mr Coward was confined to barracks, on exercise, or in the weeks prior to his barrack confinement, which for the most part was part of his employment (defence service) Counsel for MCRS contends that such an approach is speculative, with the weeks prior to his confinement to barracks involving periods of employment and periods of time and activities undertaken during such periods which cannot be considered integral to the circumstances of Mr Coward’s defence service.

19.     In addressing the issues of osteoarthritis, Counsel for Mr Coward submitted that the osteoarthritic process develops more readily in joints that have been affected by reactive arthritis.  In so stating Counsel relies upon the opinion of Dr Major, and in part upon the opinion of Professor Sambrook, both placing importance on the issue of asymmetry in the evolution of the osteoarthritic process in Mr Coward, with joints affected by the reactive arthritis demonstrating osteo arthritic changes more so than their companion joint.  Counsel for MCRS contends that, while the issue of the presence of osteoarthritis has not been radiologically defined, the contention that a joint affected with reactive arthritis necessarily predisposes or accelerates the degenerative osteoarthritic process in that joint is one not supported by the text from the Rheumatology Extract in evidence, nor is it the opinion of Dr McGill.

Entitlement to compensation

20. The particular issue in this matter is whether MCRS is liable to pay compensation to Mr Coward for his conditions of reactive arthritic and osteoarthritis. Sections 124(1A) of the Safety, Rehabilitation and Compensation Act1988 states that Mr Coward is entitled to compensation under the Act in respect of injury, loss or damage if it would have been payable under the 1971 Act, with injury under the 1988 Act incorporating a disease suffered by an employee (Section 4).

21.     The Compensation (Australian Government Employees) Act 1971-1973 provides the following:

“Section 29

(1)where

(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

(b)any employment of the employee by the Commonwealth was a contributing factor to the contradiction of the disease or to the aggravation, acceleration or recurrence as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of this section have effect:

(2)If

(b)a loss to the employee of a kind inferred to section 39 or 40 of this Act.

(e)the total or partial incapacity for work of the employee, results from the disease … for the purposes of this Act, unless the contrary intention appears.

(f)the contraction of the disease … shall be deemed to be a personal injury arising out of the employment of the employee by the Commonwealth; and

(g)the date of the loss … the date of the commencement of the incapacity … shall be deemed to be the date of the injury.”

22.     In this matter there is no dispute between the parties and I so find that Mr Coward’s disease of reactive arthritis occurred during the course of his employment, that is a temporal connection exists.  The issue that remains to be decided is whether Mr Coward’s employment was a contributory factor to the contraction of the disease.

23.     Counsel for Mr Coward contends that the necessary prior infection (non- identified) on the balance of probabilities occurred during Mr Coward’s employment.  During the operative period (days to four months prior to the onset of the symptoms of reactive arthritis) Counsel contended that all Mr Coward’s activities during the exercise period and his confinement to barracks constituted employment, and would appear to contend that the only non employment activity by Mr Coward during the period was his episodic alternate Saturday visits to Townsville city.

24.     I have difficulty in defining the ambit of Mr Coward’s defence service in such terms.  In the absence of evidence detailing that Mr Coward was required to live in at Lavarack Barracks, I would conclude that there was a daily start and ending to Mr Coward’s employment activities except in nominated circumstances.  These would include when Mr Coward was rostered for night or weekend duties, when he was confined to barracks (a requirement to be present) and when on exercise.  In so finding I note the observations made by all High Court Judges at p 9, 35 in Roncevich v Repatriation Commission [2005] HCA 40 in defining the scope of employment to include the performance of the work reasonably required, expected or authorised to do in order to carry out his actual duties.

25.     In such circumstances I conclude that I am left with the following outcome:

·     Mr Coward’s defence service would include some 14 days prior to the lifting incident on 13 September 1972, the days thereafter prior to his hospital admission and the period in hospital.

·     For the period prior to his confinement to barracks his defence service would include those periods when he was rostered for duty and any work reasonably  required, expected or authorised to do to carry out his actual duties.  It does not include periods where he is rostered off duty and not undertaking authorised or expected activities.  It does not include periods of local leave.

·     Mr Coward suffered a subclinical enteric or urogenital infection during the period of days to four months prior to the onset of symptoms of his reactive arthritis, the period of days to four months being the operative period in which the prior infection may possibly occur as defined by the text and medical specialist opinions.

·     Mr Coward was unaware of any symptomology relating to his sub-clinical enteric or urological infection.

26. I am mindful of the Full Court’s observations on the issue of contribution when considering section 29(b) of the Compensation (Commonwealth Government Employees) Act1971 in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323:

“the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of.  The causal connection must be established on the probabilities and not left in the area of the possibility or conjecture.  Once the link is established it matters not that the contribution be small or large”.

27.     The difficulty that I express in relation to the material before me is that I am left to speculate on the following matters:

·The nature of the prior infection, and whether it was an enteric or urogenital infection with the latter infection’s source or cause on balance not being an incident of his defence service.  The former enteric infection may have its source or cause from contaminated food or water and such a source may or may not occur as an incident of his defence service.

·The timing of the prior infection, with the window of opportunity for such an infection to occur being within days and up to four months as defined by the texts in evidence and the opinions of Drs McGill and Professor Sanbrook.

·Whether the prior infection occurred during Mr Coward’s period of defence service prior to the onset of symptoms of the reactive arthritis.

28.     Counsel for Mr Coward submits that this matter can be determined by a probalistic analysis of the likelihood of the prior infection occurring during his defence service.  Counsel supported his argument by reference to the decision in Favelle Mort Ltd v Murray (1976) 133 CLR 580 (a matter in which the employee successfully claimed compensation for an encephalitic condition caused by a mosquito bite during his overseas employment in New York); in a decision of the Tribunal in Tully and Comcare (Q95/927) 4 October 1996 in which an analysis was undertaken as to when it was more likely that Mr Tully was bitten by a mosquito, which led to his Ross River infection; and to the decision in Military Rehabilitation and Compensation Commission v Wall [2005] FCAFC 127 (a matter in which a national serviceman’s smoking habit was affirmed with his employment making a contribution, as he, amongst other issues was required to live in barracks.

29.     I have much difficulty with the approach suggested.  I further note that in each of the authorities relied upon the disease/condition, the manner in which the infection/habit occurred and the ambit of the employment was clearly defined and considered.  Counsel for Mr Coward in essence contends that Mr Coward’s prior infection on the balance of probabilities, was acquired as an incident of his defence service.  Such a proposition in my view ignores or speculates as to the nature of the infection, the source of the infecting organism and the circumstance in which the infecting organism has been acquired.  It also involves conjecture as to when the prior infection actually occurred within the defined window of opportunities in circumstances where the nature, source and manner of acquisition remain unidentified.

30.     Counsel for Mr Coward stressed in argument that failure to identify the infection episode did not matter, for an infectious process must have occurred within the operative time frame for the subsequent disease, reactive arthritis to occur.  It is within the ambit of this argument that Counsel contends that it is more probable than not that the prior infection occurred as an incident of his employment.  Counsel stressed that Mr Coward was on duty for the 14 days prior to the injury on 13 September 1972 and that for the duration of the operative period he was predominantly on duty, when living or working at the barracks, with only an occasional foray into the city.

31.     I am mindful of the difficulties of applying statistical probability in such circumstances, particularly where such an analysis involves a number of circumstances to which a probability factor has to be applied, with the final probability being derived from a multiplication of the related probabilities.  A careful analysis reveals the underlying difficulties in such an approach, while at the same time highlighting the necessary conjecture and speculation to be made in order to address the correct legal analysis in this matter, namely did Mr Coward suffer an infection during the operative period, which was contributed to on the balance of probabilities by his employment, the infection being a precursor to the development of his reactive arthritis?

32.     It is accepted that an infection did occur in the operative period (days to four months).  The nature of the organism is either enteric or urogenital.  The causative organism has not been defined, with the range of causative organisms significant (difficult to nominate a probability).  The causative infections are contracted in various circumstances: enteric infections from contaminated food/water with urogenital infections being essentially sexually transmitted.  This raises further speculation as to whether the infection was an incident of his employment or not and whether the incident of such an infection can be simply related to Mr Coward’s employment on a time related basis or more as a consequence of random exposure (single exposure to infectious organism in opportunistic circumstances). The latter is consistent with the acquisition of an infectious disease, with time only being significant, when it is established that a particular organism is endemic within a particular population group.  It is sufficient to conclude that the amount of information not defined in this matter is significant, with an inevitable outcome that any analysis has to include significant amounts of conjecture/speculation if the applicable legal analysis and test is to be addressed.

33.     As a consequence of this analysis I conclude that the fundamental building blocks underlying the probalistic approach, while identified, remain undefined.  Definition of such foundations can only be established in this matter by further conjectural analysis.  In such circumstances it is evident that the ultimate probalistic contention does and must reflect the underlying difficulties.  Not to do so results in statistical invalidity, with any contention that fails to recognise such invalidity, also failing for want of merit.  The assertion that the prior infectious process was more likely to have occurred as an incident in his employment is tainted with such difficulties.  In so stating it is evident that there are a series of undefined circumstances in this matter which require conjecture to finalise the foundation architecture.  Each conjectural activity creates a set of possibilities, with the final analysis reflecting the various inputs from each set of possibilities.  It is for these reasons that I reject the contention and analysis made by Counsel for Mr Coward, as it is evident that the process when properly analysed requires much conjecture and speculation.

34.     I also note the Tribunal decision in Re Maliphant and Comcare [2004] AATA 232 dated 8 March 2004, in which a navy’s diver claim for compensation for insulin dependent diabetes mellitus was unsuccessful. The argument that mouth pieces contaminated with viruses with the latter causing pancreatic damage was seen as conjecture or possibility by the Tribunal in the circumstances of the matter.

35.     In conclusion, I am not satisfied on the balance of probabilities that Mr Coward’s employment has made a contribution to his disease of reactive arthritis.  In so stating I recognise that his employment may have possibly made a contribution.  To extend a finding to that his employment made a contribution on the balance of probabilities would involve the application of conjecture or speculation to various uncertain and undefined circumstances in the material before me.  This I am not prepared to do, with the consequence that Mr Coward is unsuccessful in his claim for compensation for his reactive arthritis.

36.     Further I conclude on the balance of probabilities that Mr Coward’s employment has not made a contribution to this degenerative arthritic condition involving his right knee for the following reasons:

·The causative link to his employment is severed by his failure to succeed on his primary claims; and

·The weight of medical evidence (medical text and Dr McGill opinion) denies a relationship between joints affected with reactive arthritis and subsequent degenerative osteoarthritis.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member

Signed:         N.Glaser
  Associate

Dates of Hearing  26 and 27 July 2005
Date of Decision  20 October 2005

Representative for the Applicant              Mr M. Vincent

Representative for the Respondent          Mr B. Kelly