David Turner and Military Rehabilitation and Compensation Commission

[2013] AATA 741

[2013] AATA 741

Division	VETERANS’ APPEALS DIVISION
File Number(s)	2013/0725-0727
Re	David Turner
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	15 October 2013
Place	Sydney

The decisions under review are affirmed.

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

Senior Member J F Toohey

CATCHWORDS

COMPENSATION – military compensation – carpal tunnel syndrome – rotator cuff tendinosis – osteoarthritis of neck, shoulder, hands and wrists – whether employment contributed to in a material degree – decisions under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 7, 14

REASONS FOR DECISION

Senior Member J F Toohey

15 October 2013

BACKGROUND

1. Mr David Turner served in the Civilian Military Forces from 1966 to 1968.  From 1970 to 1972 he performed National Service.  From 1979 to 1996 he served part-time as a chef in the Australian Army Reserve.  He was also employed full-time by the State Rail Authority NSW from 1975 to 1990.

2. In October 2011, Mr Turner claimed compensation under the Safety, Rehabilitation and Compensation Act1988 (Cth) (the Act) for the following injuries said to be the result of his military service:

   (a)“bilateral carpal tunnel syndrome – both forearms and wrists”;

   (b)“osteoarthritis neck and shoulders chronic rotator cuff tendinitis – neck and shoulders”; and

   (c)“osteoarthritis fingers and hands – both hands, both sets of fingers”.

3. Mr Turner contends that his bilateral carpal tunnel syndrome was caused by constant repetitive movements over long hours while working as a chef in the Army Reserve.  He claims his osteoarthritis was caused by his military service generally, including while working long hours as a chef bent over a work bench.  Mr Turner says he first noticed each condition in about 1997.  He first sought treatment in 2010.

4. The respondent accepts that Mr Turner suffers from bilateral carpal tunnel syndrome, right rotator cuff tendinosis, and osteoarthritis of the neck, but says none of these conditions is related to his military service.

5. The respondent does not accept that Mr Turner suffers from osteoarthritis of his shoulders, fingers or hands and says that, even if the Tribunal finds he suffers from any of these conditions, there is no evidence on which it could be satisfied that any of those conditions is the result of his service.

6. I have to determine:

   (a)what conditions Mr Turner suffers from;

   (b)whether any of his conditions is causally related to his employment.

   LEGISLATION

7. By s 14 of the Act, the respondent is liable to compensate Mr Turner for an injury that results in death, incapacity for work, or impairment.

8. A preliminary issue arises, being whether the legislation to be applied in determining Mr Turner’s claims is the Act as it was prior to, or after, amendments on 13 April 2007.

9. Mr Turner does not claim to have suffered a particular injury on a particular occasion; his claims concern the nature and conditions of his employment generally.  The respondent says, and I agree, that each of the conditions for which he claims compensation is an ailment, or aggravation of any such ailment, and so a disease within the meaning of the Act.

10. As the Act was prior to April 2007, a disease was an ailment, or aggravation of an ailment, that was contributed to in a material degree by the employee’s employment.  By amendments to the Act in April 2007, contribution to a significant degree to a disease in required.  Significant degree means a degree that is substantially more than material: s 5B(3).

11. By s 7(4) of the Act, an employee is taken to have sustained an injury, being a disease or aggravation of the disease, on the day when the employee first sought medical treatment or when it first resulted in incapacity for work, or impairment.

12. In its reviewable decisions, the respondent applied the lower, pre-April 2007 test of contribution in a material degree.  Given that Mr Turner did not seek medical treatment for any of his conditions until 2010, it is arguable that the later test should be applied.  The respondent submits that it is open to the Tribunal to apply the lower test because Mr Turner’s military service was wholly pre-April 2007, and he claims to have experienced symptoms during his service.

13. I agree that it is reasonable, in the circumstances, to apply the legislation in force prior to April 2007.  In order for his claims to succeed, therefore, I must be satisfied that Mr Turner’s employment contributed in a material degree to his conditions.

    MR TURNER’S EVIDENCE

14. Mr Turner gave evidence that his duties as a chef included loading and unloading heavy loads on trucks, often with his arms above shoulder height, and preparing meals which involved hours of repetitive chopping and working at a low bench.  He did weekly shifts of approximately four hours; a weekend from Friday night to Sunday night once a month; and he went on three camps of approximately three weeks each, each year.  A normal day would be approximately 10 hours, but much longer on bush camps.

15. Mr Turner gave evidence that he experienced problems with his neck, shoulder, arms, hands and feet throughout 1979 to 1996 while working as a chef.  He says his symptoms were always present, although worse when performing certain activities.  He says he complained continually throughout his service about the pain, and would be given Panadol, or Metsal to rub into his hands.

16. After he left the Army Reserve, Mr Turner did not report his symptoms to a doctor until 2010.  He gave evidence that he does not like seeing doctors and does not like taking medication, and he managed the pain until it became unbearable and was keeping him awake at night.

17. Mr Turner was asked about his work with the State Railway Authority from 1975 to 1990.  He gave evidence that he held various positions including as a manager, a maintenance fitter for about eight years, and as a “shop boy”.  He was medically retired in 1990 after a back injury at work.  Mr Turner agreed that he used his hands every day while working as a maintenance fitter to check engines, change oil and perform general “running maintenance”, and he would occasionally use machinery, but he said there was very little lifting, and he would give any heavy work to his mate.  He made no complaints about his symptoms while working for the SRA.

    DOCUMENTS PRODUCED BY THE RESPONDENT

18. Documents produced to the Tribunal by the respondent (the “T-documents”) include various Medical Examination Board records, among which is a record of an examination by Dr A Wu on 21 July 1996, the last day of Mr Turner’s military service.

19. Mr Turner maintains Dr Wu’s record is fabricated.  He says it does not reflect what happened during his consultation with Dr Wu.  In particular, he says that, although it purports to show his height, weight and blood pressure, Dr Wu did not measure any of those.  Nor did he perform an audio test, even though results of an audiogram appear on the report.  Mr Turner says that, contrary to Dr Wu’s note that he had no hernia, he in fact has a hernia, and, although the report notes his ECG was normal, Dr Wu did not perform an ECG.  He says he spent 10 minutes at most with Dr Wu.

20. The medical records produced by the respondent comprise copies of all Mr Turner’s medical examinations while on service.  The respondent says no documents have been found relating to the conditions for which Mr Turner claims compensation.  Mr Turner maintains this cannot be correct because of the numerous times he complained of pain in his neck, shoulder, arms and hands while on service.  He believes the records supplied by the respondent are incomplete.

21. In support of this submission, Mr Turner produced to the Tribunal a record of a “Report of an injury or illness” dated 19 December 1995 in which he wrote that he had “been exposed to asbestosis (sic) within buildings at 2 Training Group since 1980”.  Mr Turner says he came across this report by chance; it was not included in the T-documents, and other reports must also have been omitted.

22. It does not follow, however, because one report of an injury or illness was not included in the T-documents, that documents relevant to the present claims exist but have not been produced by the respondent.  Section 37 of the Administrative Tribunal Act 1975 (Cth) requires a respondent to produce to the Tribunal documents in its possession that are relevant to the Tribunal’s review.  It is reasonable to infer that the respondent did not provide the asbestosis report because it had no bearing on Mr Turner’s claims.

23. Further, in November 2012, Mr Turner made a request under the Freedom of Information Act 1982 (Cth) for copies of all documents held on his file by the Department of Veterans Affairs. A copy of the documents is not before the Tribunal but I am advised, and Mr Turner accepts, that the file was released to him in full. He concedes that it did not include reports of complaints relevant to the conditions for which he seeks compensation.

24. I note that, in each of his claims for compensation, in response to the question “Did you report your injury, disease or illness to your supervisor?” Mr Turner ticked “No”.  He gave evidence he did not formally report his pain, but he still believes his numerous complaints about his symptoms would have been, or should have been, documented somewhere.

25. I think it is reasonable to infer that no reports exist of complaints by Mr Turner about the conditions which are the subject of his claim, and I am satisfied that is so. 

26. I do not accept that Dr Wu’s report is fabricated.  It is possible that it was done in some haste and it is possible that some information in it, such as Mr Turner’s height, weight and blood pressure were simply transferred from other reports.  It records in some detail the history, symptoms and treatment of Mr Turner’s lower back pain.  I think it more probable than not, had Mr Turner complained of symptoms in his neck, shoulders, arms or hands, that some record would have appeared in Dr Wu’s report.  In my view, the absence of any other record of complaint supports this conclusion.

    OTHER MEDICAL EVIDENCE

27. After receiving his claims for compensation, the respondent asked Mr Turner several times for any documents that might support his claim that he suffered from the conditions complained of, and for a statement from him as to how each was related to his service.

28. In March 2012, Mr Turner submitted a report of an x-ray of his right shoulder dated 20 May 2011 which showed “chronic rotator cuff tendinosis” and “mild subacromial bursitis and early acromioclavicular degeneration”, and a bulk bill assignment advice showing he had undergone an ultrasound and “Joint Injection/Aspiration” in August 2011.  He also submitted the results of testing by Associate Professor Jonathan Sturm, neurologist, and Andrew Clark, neurophysiologist, whose findings were “consistent with carpal tunnel syndrome”. 

29. The respondent subsequently arranged for Mr Turner to see Dr Jonathan Young, consultant orthopaedic surgeon, on 26 September 2012 for assessment.  Dr Young has provided a written report of his examination, and he gave oral evidence.

30. Dr Young referred Mr Turner for an x-ray of his cervical spine, wrists, and left shoulder, and an ultrasound of his left shoulder (scans having been done previously of his right shoulder).  A copy of the radiological report dated 9 October 2012 is in evidence.

31. The x-ray and ultrasound report showed “no significant acromioclavicular or glenohumeral osteoarthropathy” in Mr Turner’s left shoulder.  On this basis, Dr Young said he could find no evidence of osteoarthritis in Mr Turner’s left shoulder, and nor did the ultrasound of his right shoulder in May 2011 show any evidence of osteoarthritis.

32. Nor could Dr Young find any evidence of osteoarthritis in Mr Turner’s hands.  He said that, on clinical examination, Mr Turner’s hands were stiff, which could be a symptom of osteoarthritis but he would expect, if that were so, there would be significant joint space narrowing.  However, none was detected on scans, and there was no substantial swelling over any joints in the hands.

33. The x-ray of Mr Turner’s cervical spine showed “mild end plate degeneration and disc height narrowing at C5-6 and C6-7”.  There was “no significant facet joint arthropathy and no significant bony narrowing of the neural exit foramina”.  On this basis, Dr Young said, there was evidence of osteoarthritis in Mr Turner’s neck but, in his opinion, it was mild and entirely consistent with his age.

34. It is not in dispute that Mr Turner suffers from bilateral carpal tunnel syndrome and right rotator cuff tendinosis.  However, in Dr Young’s opinion, there is no relationship between Mr Turner’s service and his carpal tunnel syndrome.  Dr Young gave evidence that the condition occurs with age, often without any obvious cause, and 25 to 30 percentage of people aged in their fifties and sixties have the condition.  He thought it difficult to see how Mr Turner’s duties as a chef would cause, or aggravate, carpal tunnel syndrome.  He thought it plausible that rapid chopping motions over a long period could cause short-term aggravation of symptoms but, if so, the condition would return to its previous state once the activity ceased.

35. In relation to the right rotator cuff tendinosis, Dr Young gave evidence that the condition is degenerative and “extremely common” in men of Mr Turner’s age.  Dr Young thought that, if he had the condition while he was performing service, then working with his arms above shoulder height could have caused short-term aggravation of the condition but, like the carpal tunnel syndrome, there would have been a temporary aggravation of symptoms only and no change in the underlying disease process.

    CONSIDERATION

36. I am not satisfied, on the evidence before me, that Mr Turner suffers from osteoarthritis of the shoulders or hands.  I accept Dr Young’s uncontradicted evidence that there is no sign of osteoarthritis in Mr Turner’s shoulders or hands.  It follows that no causal connection can exist between those conditions and his service.

37. I accept Dr Young’s evidence that Mr Turner has mild osteoarthritis in his neck.  I also accept Dr Young’s uncontradicted evidence that it is degenerative and age-related, and unrelated to Mr Turner’s military service.

38. I accept Dr Young’s evidence that Mr Turner’s duties as a military chef would not have caused his bilateral carpal tunnel syndrome and right rotator cuff tendinosis but could have caused some temporary aggravation of those conditions.

39. Even allowing that Mr Turner does not like seeing doctors or taking medication, it is difficult to reconcile the extent of pain he says he was suffering while working as a chef with the fact that he did not formally report symptoms in his wrists and arms, or shoulders, over approximately 17 years in service.  Nor is there any evidence to suggest that he was incapacitated in any way from performing his duties.  He did not seek treatment of any sort until nearly 15 years after he left service and neither condition was diagnosed until 2011.

40. In the absence of any independent evidence of symptoms of bilateral carpal tunnel syndrome or right rotator cuff tendinosis while on service, I am not satisfied that the onset of those conditions occurred during Mr Turner’s service.  That is not to say that his employment could not have been the cause of a disease that only became symptomatic later, but Dr Young did not think his employment could have been the cause.  I accept his evidence about this.

41. Dr Young said it was possible that the activities described by Mr Turner could cause a minor, temporary, aggravation of the symptoms of carpal tunnel syndrome and rotator cuff tendinosis.  However, for the reasons I have given, I am, not satisfied that such temporary aggravation occurred.

    CONCLUSION

42. I am not satisfied that Mr Turner suffers from osteoarthritis of the shoulders or hands.  I am not satisfied that his employment contributed in a material degree to his bilateral carpal tunnel syndrome, right rotator cuff tendinosis or mild degenerative osteoarthritis in his cervical spine.  As none of those conditions satisfies the definition of disease in the Act, none is an injury for the purposes of the Act and the respondent is not liable to compensate Mr Turner.

43. I affirm the decisions under review.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated 15 October 2013

Date of hearing	2 October 2013
Applicant	In person
Solicitor for the Respondent	Ms E Baggett, DLA Piper Australia