Effenberg and Comcare
[2004] AATA 1295
•6 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1295
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/343
GENERAL ADMINISTRATIVE DIVISION ) Re KARL EFFENBERG Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date6 December 2004
PlaceSydney
Decision The Tribunal affirms the decision under review. [SGN] Dr J D Campbell Member
CATCHWORDS
WORKERS COMPENSATION - injury - disease - ailment - material contribution - denial of liability – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 – sections 4 and 14
REASONS FOR DECISION
6 December 2004 Dr J D Campbell, Member 1. In this matter Mr Karl Effenberg (“the Applicant”) seeks a review of the reconsideration decision made by Comcare (Department of Veterans’ Affairs) (“the Respondent”) on 16 January 2003. In this decision the Respondent affirmed an earlier determination dated 17 April 2002 that denied liability in respect of the claim for osteoarthritis of the right hip and right knee.
2. Mr Effenberg had lodged a claim dated 21 November 2001 on 29 November 2001 under the Military Compensation Scheme. In this claim, with an attached statement dated 27 November 2001 Mr Effenberg claimed that osteoarthritis to his right knee and right hip had arisen from a combination of activities, including field exercises, sports and regular fitness programs, undertaken during his period of Military Service. Further Mr Effenberg particularly noted an injury received to his right knee, while participating in the 1987 Army Inter Area Skiing Competition. Mr Effenberg also claimed that adequate footwear was not provided in circumstances where activities such as continuous jogging were undertaken to maintain the necessary fitness standards required.
3. The Respondent denied Mr Effenberg’s claim on 17 April 2002 (T17) noting that for a claim to be successful under the Act, the evidence has to show that it is probable, and not merely possible, that Military Service was a contributing factor to the causation and/or aggravation of a condition suffered by a claimant. This decision was affirmed by the Respondent on 16 January 2003 (T22), in which the Respondent preferred the evidence of Dr Horsley, a Consultant Orthopaedic Surgeon, in his report of 24 September 2001 (T9), where he noted :
“(a) There was no good evidence to support the development of osteoarthritis of the hip and knee associated with jogging . . .
(b) Further training to compliment or strengthen his muscle tone is unlikely to have altered the outcome of his joints.
(c) It has not been shown that particular shoe wear influences osteoarthritis.
(d . . . the injury to the right knee was only fairly minimal and therefore I do not believe this is related to his current symptoms.”
issues
4. The relevant issue in this matter is whether Mr Effengerg is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of osteoarthritis to his right knee and hip, alleged to have been sustained in the course of his service with the Australian Defence Force.
decision
5. For the reasons stated later in this decision the Tribunal concludes that the Applicant’s ailments of osteoarthritis of the right knee and right hip were not ailments and/or aggravation of such ailments that were contributed to in a material degree by the employee’s employment. Such a finding is made on the balance of probabilities, the Tribunal having assessed all the material which was placed before it, including the numerous learned articles from professional journals.
6. As a consequence of such a finding, the Applicant’s claim for compensation must fail. The Tribunal, in turn affirms the decision under review.
applicant’s evidence
7. Mr Effenberg in evidence before the Tribunal detailed the following:
(a) Born 1949, joined the Army as a national serviceman on 21 January 1971. Suffered an injury to his back, when jumping out of a truck in March 1971 during his recruit training.
(b) Underwent recruit training at 2 RTB Puckapunyal, which involved a lot of drill, a rout march and much physical activity.
(c) Underwent corps training in catering at Puckapunyal and was on completion posted as a steward to 2 Div at Moore Park in Sydney.
(d) Transferred to the Service Corps in 1972 and completed a clerical course. Posted to Sydney Transport Unit in a clerical position, prior to transferring to ARA on service extension in October 1972, with further transfer to the Corps of Transport in 1973.
(e) Subsequent posting to Albury, and promotion to sergeant occurred prior to further corps transfer to Ordnance in 1982.
(f) Later service postings included 18 months at a Reserve Unit in Kensington, a further period at DSU Albury, and during 1988/89 undertaking clerical work at Land Command in Sydney associated with the organisation of exercises.
(g) Left the Army in 1991, having had leave for the final year.
8. Mr Effenberg described activities/incidents that occurred to him in the following terms:
(a) Was involved in combat exercises; undertook rout marches; was involved in running 10 km in the early morning without adequate warm up sessions.
(b) Undertook a lot of sport to keep fit, and this included volleyball, skiing, football, badminton and golf.
(c) Was involved in Army exercises, the longest of which went for two weeks and that no specific incident occurred to him during those exercises by way of physical injury.
(d) Suffered a direct knock to his knee in 1987 while involved in cross country skiing, requiring suturing for resultant laceration.
(e) Was involved in a motorbike accident, when he was thrown clear of his bike landing head first on his helmet and suffering a sore hip.
9. Mr Effenberg described his ailments in the following terms:
(a) His degenerative joint disease, arthritis, commenced in his right knee some four to five years after he left the Army in 1991.
(b) He had reported problems with his right hip some six months before he left the Army and had been given non steroidal antiinflammatories. He had ceased running at this time and commenced walking, cycling and golf.
(c) That since he left the Army, he had been working in real estate and had suffered no injuries.
(d) That on 2 August 1999 his right knee had become swollen following dancing with his wife. He iced the knee and saw his general practitioner, Dr Smart the next day. He was referred for physiotherapy to Ms Howe.
(e) That the knee continued to remain uncomfortable, with Dr Smart referring him to Dr Hale, a Consultant Orthopaedic Surgeon. He was again referred for more physiotherapy, followed as a consequence of lack of improvement, by an arthroscopy in May 2000.
(f) That at the time of his discharge from the Army he had no problems with his right knee, but his back was causing problems and this was limiting the level and type of activities he could undertake at that time.
10. In a letter dated 27 April 2002 (T18) Mr Effenberg describes attending the RAP at Victoria Barracks for pain in the right hip region, with IM Cortisone given. Mr Effenberg then describes the pain as persisting over a 12 month period and ceasing when he decided to give up jogging. Mr Effengerg stated that he reported nagging right hip pain to his local doctor shortly after discharge in 1991 and again was treated with analgesics.
medical evidence
dr smart – general practitioner
11. Dr Smart’s Clinical Notes (Exhibit R3) reveal the following:
(a) The Applicant did attend him complaining of pain in the right hip twice in January 1990, and for pain in the back and right hip in July and August 1991.
(b) That Mr Effenberg attended on 2 August 1999 complaining of a painful swollen right knee after dancing six weeks ago and was referred to Ms Howe for physiotherapy; that on 9 August 1999 he again reported presenting problems in right knee and hip and x-rays were ordered.
(c) That x-rays taken on 23 September 1999 of right hip demonstrated minimal degenerative change and of right knee showed early osteoarthritic change (Dr Sewell, Consultant Radiologist (T5)).
(d) That with persisting pain in his right knee he was referred to Dr Hale for opinion and arthroscopy on 12 November 1999.
dr hale - consultant ortopaedic surgeon
12. In a report dated 18 November 1999 (Exhibit R4), Dr Hale detailed the clinical history of the Applicant’s symptoms with his right knee commencing in May 1999. Dr Hale considered the x-ray findings unremarkable and recommended continuation with physiotherapy and a review in late January.
13. In a report dated 25 May 2000 (T6) Dr Hale reported that at arthroscopy on 24 May 2000, he had removed many loose chondral bodies, had observed a minor intra substance tear of the lateral meniscus, gross grade 3 chondral changes to the lateral femoral condyle, and grade 2 to 3 chondral changes affecting the trochlear groove (T6).
14. In a further report dated 2 June 2000 (T7), Dr Hale commented that “In the absence of a family history of arthritis and with no specific injury it certainly appears likely that this [the Applicant’s activities during military service] has contributed to the development of his osteoarthritis.”
dr horsley - consultant orthopaedic surgeon
15. In a report dated 24 September 2001 (T9) Dr Horsley detailed the clinical history of the Applicant in relation to the right hip and knee. Dr Horsley considered the x-rays taken of the right knee and right hip in September 1999 as demonstrating very minimal osteoarthritis.
16. Dr Horsley considered the skiing incident in 1987 to be a minor injury. Dr Horsley considered the osteoarthritis in the right hip to have commenced in 1988, when Mr Effenberg first sought treatment for his pain. In relation to the osteoarthritis of the right knee, Dr Horsley believed it to have commenced in the late 1990’s.
17. In relation to issues raised by Mr Effenberg in his letter of 29 March 2001 (T8), Dr Horsley made the following comments:
“(a) There is no good evidence to support the development of osteoarthritis of the hip and knee associated with jogging. ‘The Journal of Rheumatology 1993; 20:4 P704”.
(b) Further training to compliment or strengthen his muscle tone is unlikely to have altered the outcome of his joints.
(c) It has not been shown that particular shoe wear influences osteoarthritis.
(d) As I have outlined above, the injury to the right knee was only fairly minimal and therefore I do not believe this is related to his current symptoms.”
18. In a later report dated 14 December 2001, (T13) Dr Horsley reinforced his opinion earlier expressed that the injury to the Applicant’s right knee in 1987 “was not severe enough to cause osteoarthritis as his pain settled rapidly and he was able to continue skiing immediately following the injury.”
dr mcgill - consultant rheumatologist
19. In a report dated 3 September 2003, Dr McGill detailed the clinical history of the Applicant in relation to both knees and his right hip. He summarised his opinion in the following terms:
“This 53 year old man has moderate osteoarthritis of both knees and mild osteoarthritis of the right hip. In about 1986 he suffered an injury to the right knee region while skiing. In light of the description of that injury which he today provided and the further information provided in his letter, I agree with the views of both Dr Hale and Dr Horsley that the skiing injury would have had no ongoing effect on his knee and is irrelevant with respect to his osteoarthritis.
To answer the question as to whether his jogging and other physical activities in the Army are likely to have had a significant influence on development of his osteoarthritis, one needs to assess the available literature in regard to the influence of this type of activity in the absence of discrete injury. I will complete this report after I have reviewed the literature.”
20. In a follow up report dated 6 September 2003, Dr McGill summarised eight articles as a consequence of his literature search. As a consequence Dr McGill detailed the following summary of his opinion:
“The published studies do not all provide the same conclusions and thus it is possible to find a study which would support either of the extreme reviews that physical activity has no effect on the development of knee or hip osteoarthritis or, on the other hand the view that regular, intense weight bearing exercise does have a deleterious effect on hip and knee osteoarthritis. I think a balanced conclusion from the studies which have been performed is that there may be a minor deleterious effect from the very demanding and intense levels of exercise carried out by elite athletes but that jogging and the various physical activities that Mr Effenberg performed as part of his general Army training are unlikely to have had any significant influence on the development of his knee or hip osteoarthritis.
Thus in response to the further questions:
I do not think that Mr Effenberg suffers from any work related condition. I think his knee and hip osteoarthritis is constitutional.
I think the symptoms he described are due to knee osteoarthritis. I found no suggestion of embellishment.
I do not think that “osteoarthritis right knee and hip” have been contributed to in a material degree by his Army service. I hold the same view in regard to his left knee osteoarthritis.
He is fit for his current employment and he is fully employed performing duties within his real estate business.
I do not think that his condition can be improved by further treatment.
His prognosis is for a gradual deterioration in his osteoarthritis in accordance with the natural history of osteoarthritis.”
consideration and findings
21. In 20 years of Military Service the Tribunal observes that Mr Effenberg pursued and performed his military obligations as to regards maintaining his personal fitness by participating activly in sports and running on a regular basis. Further as part of his military occupation the Tribunal observes that it would have been necessary for Mr Effenberg to participate in and complete the necessary physical requirements of recruit training, and subsequently participate in and complete the necessary physical requirements associated with annual fitness requirements as well as participate in any field exercises and duties that were required. The Tribunal observes that apart from a back injury early in service (liability accepted), a motorbike accident early in service with no ensuing physical consequences and a skiing accident in 1987, the Applicant remained physically fit until the last 18 months of service. In this period there is evidence to suggest increasing complaint of back pain together with pain in the right buttock. The Tribunal accepts the history of events as having been detailed by Mr Effenberg, and in so doing accepts that at particular points Mr Effenberg was a little vague as to particular detail of an event that occurred during his 20 years of service.
22. Similarly the Tribunal accepts Mr Effenberg’s rendition of his clinical history to the specialists he has seen and in so doing notes the relative consistency of the story told. While the Tribunal observed some inconsistency during the Applicant’s early evidence as to commencement of symptomatology in the right knee, further evidence clarified the situation. As a consequence the Tribunal concludes that Mr Effenberg has presented his evidence in a credible manner, while at the same time wishing to emphasise a range of activities which he believes were causative of his ailment in his right hip and knee.
23. In addressing the clinical history as presented by the Applicant and relying upon the opinions expressed by the specialists involved, the Tribunal concludes that Mr Effenberg suffers from :
· Osteoarthritis of the right hip with clinical onset at time of reporting symptoms in 1988
· Osteoarthritis of the right knee with clinical onset in May 1999.
24. The Tribunal notes the following statutory framework:
Section 4 of the Act which provides the following definitions:
“Section 4 Interpretation
“ailment” means:
any physical or mental ailment, disorder defect or morbid condition (whether of sudden onset or gradual development)
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of such ailment;
being an ailment or aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
“injury” means:
(a) a disease suffered by an employee; or
(b) …
(c)… ”
Section 14(1) of the Act provides that:
“Section 14 Compensation for Injuries
14(1) subject to this part, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee . . .”
25. The Tribunal is satisfied that the Applicant was suffering from an ailment pursuant to the definition in section 4 of the Act. The question which has to be addressed next is whether the ailment or the aggravation of the ailment was contributed to in a material degree by the employee’s employment. As indicated earlier in this decision such a finding has to be made on the balance of probabilities.
26. The Tribunal observes that Mr Effenberg argues that the activities undertaken within his 20 years of military service constitute the material contribution to either causation of the ailment (osteoarthritis) or aggravation of a pre existing ailment, namely degenerative osteoarthritis. In making such argument Mr Effenberg relies upon an absence of a family history of osteoarthritis and the opinion of Dr Hale.
27. In addressing such an argument the Tribunal notes the opinions of Dr Horsley and Dr McGill, who both in essence conclude that the Applicant’s army service activities may possibly as opposed to probably, make a material contribution to the causation of the osteoarthritis of the right hip and right knee. The Tribunal further notes that both specialists have arrived at their respective opinions by reference to learned articles, and in the case of Dr McGill, to a study of eight articles, obtained after a literature search.
28. The Tribunal further notes that all three specialists agree that the injury to the right knee while skiing in 1987 was a minor injury and is irrelevant with respect to the issue of osteoarthritis in the right knee.
29. The Tribunal, in addressing the eight articles summarised by Dr McGill in his second report, observes that two studies (Kujala et.al. and Spector et.al.) demonstrated an increased risk of hospitalisation from osteoarthritis of the hip, knee or ankle in male elite athletes, and an increased risk of osteoarthritis for elite female athletes who have undertaken weight bearing sports activity respectively. Four studies, namely Genti, Cooper et.al. Lane and Buckwalter and Hannan et.al. conclude respectively that:
“On the evidence of recent epidemiological studies, it is beyond doubt that mechanical stress alone does not increase the prevalence of OA (Peyron, 1986) and that loading of a normal joint, as in sport, jogging etc., does not lead to OA (Stullberg and Keller, 1984; Burry, 1987; Panush and Brown, 1987).” (at p198)
“We were unable to document any association between knee OA and a host of leisure activities, including walking, cycling, gardening, dancing and participation in outdoor sports.” (at p311)
Thus in relation to this study it was “demonstrated that in normal hip and knee joints regular recreational running does not increase the rate of development of radiographic knee or hip osteoarthritis.” (at p414)
“We found no association between habitual physical activity and knee OA or after adjustment for age, body mass index, knee injury, smoking or education”. (p704)
The two final articles (Flugsrud et.al and Baker et.al) which deal respectively with the effects of obesity as a risk factor in the development of osteoarthritis being confirmed, and a study of the effects of meniscal damage in people playing soccer, while in the absence of specific meniscal injury, the authors were unable to demonstrate an association between soccer activity and cartilage degeneration.
30. In summary the Tribunal, having addressed all the material before it finds that there is insufficient evidence which would permit it to be satisfied on the balance of probabilities, that the Applicant’s activities during his military service did contribute in a material way to the causation of the osteoarthritis of the right knee and right hip. In so finding the Tribunal relies upon the opinions of Drs Horsley and McGill, who in turn have formed their opinions after a review of the relevant literature. The Tribunal further notes that Dr Hale arrived at his opinion, after observing an absence of any family history of osteoarthritis and/or a specific injury. The Tribunal is concerned with such an opinion, as a review of the relevant literature before the Tribunal would indicate that there is a definite association between the presence of risk factors (obesity, family history, knee trauma, meniscal damage) and the development of osteoarthritis, while in their absence the learned material negates an association between physical activity and the development of osteoarthritis, other than possibly in elite athletes.
31. Finally the Tribunal concludes that for similar reasoning there is insufficient evidence to support a finding on the balance of probabilities that the Applicant’s military service activities did contribute in a material way to the aggravation of the Applicant’s osteoarthritis of the right hip and right knee, with the clinical onset of the right knee osteoarthritis occurring in 1999, making any particular association with service a more difficult task.
determination
32. The Tribunal affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed: M. Di Condio
AssociateDate/s of Hearing 20 September 2004
Date of Decision 6 December 2004
Representative for the Applicant Self Represented
Counsel for the Respondent N PolinSolicitor for the Applicant M Taplin
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