Hess and Military Rehabilitation and Compensation Commission

[2004] AATA 816

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 816

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/659

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SHANE HESS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date6 August 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

....................[Sgd].......................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – whether injury caused by employment with Commonwealth – decision affirmed

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

6 August 2004 Senior Member McCabe    

Introduction

1.      Shane Hess has problems with his feet. He was in the Royal Australian Air Force (RAAF) for a number of years and says his foot condition is attributable to his work. In particular, he says his condition was caused by (a) poorly fitting footwear supplied by his employer and (b) spending a large part of his day standing and walking on hard services at his place of work.  The respondent has refused to accept liability for the condition.

2. There is no doubt the applicant has a foot condition but I am satisfied the respondent should not accept liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988. I will explain my reasons below.

The material before the Tribunal

3. The matter was heard on 6-7 May 2004. The applicant was represented by Mr King-Scott. Mr Clark represented the respondent. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with:

·Two statements of the applicant dated 5 February 2003 and 30 October 2003;

·Correspondence between the applicant’s solicitors and Dr Saxby;

·Correspondence between the applicant’s solicitors and Dr Lewis;

·A report of Dr Saxby dated 14 October 2003;

·A report of Dr Perreboom dated 4 February 2004;

·The applicant’s army medical records.

4.      The respondent summonsed medical records from Dr Henderson.  They were also in evidence.

The facts

5.      The applicant enlisted in the RAAF on 5 June 1979. He was discharged on 28 January 2001. He maintained aircraft. He worked in Amberley and at Wagga. In his statement, he said he began to experience pain in his feet in 1998.

6.      Mr Hess said he noticed the pain in his feet and ankles early in the mornings and after he had been sitting down for a period of time. The pain grew steadily worse. He said he had difficulty doing his job: it was uncomfortable for him to walk distances onto the tarmac and he could not jump in and out of aircraft.

7.      He attributed his problems in part to ill-fitting shoes. He says he has wide feet. He had trouble obtaining a properly fitting pair of the steel-capped work boots supplied by the RAAF. They were always too narrow for his foot, he explained. He said it was not an option to wear a bigger size because his toes would rub against the steel cap. He wore the boots for 10-15 hours every work day. The problem was exacerbated by the surfaces on which he worked. All of his work was carried out in hangars and on tarmacs with hard surfaces.

8.      Mr Hess put up with the discomfort over the years, but the problems in his feet were such that he visited the medical section at Amberley in early 1999. The personnel who examined him recommended to the supply section that he be provided with more appropriate shoes, but that was not done. He was exempted from standing on parade and marching.

9.      After his discharge, the applicant became a supervisor in an engine workshop. His new job permits him to wear properly fitted shoes, and his workshop has rubber floor-covering which is not as hard on his feet. He says he is unable to play sport – amongst other activities, Mr Hess said he would ride his bicycle up to 200 kilometres each week.  He does not do that any more. He says he has difficulty doing the shopping and walking any distance with his family on outings, and he cannot work around the house anymore.

10.     Mr Hess lodged his original claim for rehabilitation and compensation for his bilateral foot condition on 21 February 2002.  On 28 February 2002 the respondent denied liability for the condition.  On 7 February 2003 the applicant requested a reconsideration of the determination.  In a letter of 3 June 2003 the respondent affirmed its earlier decision.  That is the decision under review.

The Law

11. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) says Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. 

12.     Section 4 of the Act defines “injury” as

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment…

13.     Section 24 of the Act says where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.  The degree of permanent impairment is expressed as a percentage: s24(6).   The percentage of permanent impairment is calculated by reference to the Comcare Guide to the Assessment of the Degree of Permanent Impairment (the Guide).  It is compiled pursuant to s 28 of the Act.

14.     Section 24(7) says if the degree of permanent impairment suffered by the employee is less than 10%, compensation is not payable under s 24, except in cases of binaural hearing loss: s 24(7A).

15.     I note in the decision under review the respondent denied liability for the condition without proceeding to assess a level of impairment under the Guide.  The ambit of this decision is restricted to a determination of liability.

The Medical Evidence

16.     This matter turns on the medical evidence before the Tribunal.  It is useful to summarise it here.

17.     Dr Lewis prepared a report of 24 June 2002 (f42-44 T6).  It supports the applicant’s contention that his condition was caused or aggravated by his employment with the Commonwealth.  Dr Lewis is an orthopaedic surgeon.

18.     Dr Saxby prepared a report of 1 November 2002 (f67-69 T12).  He says Mr Hess’ employment was “probably not” the principle cause of the condition.  He “probably” would have contracted the condition even had it not been for his employment.  The contribution of his employment to the condition was “minor, trivial and unimportant”.  Dr Saxby is an orthopaedic surgeon.  He specialises in disorders of the foot and ankle.

19.     In an opinion dated 3 January 2003 (f70-71 T13) Dr Casperson prefers the report of Dr Saxby over that of Dr Lewis.  Rather than attributing the condition to Mr Hess’ employment, he says Mr Hess’ weight would have had a bearing on the development of the condition.

20.     Dr Saxby prepared a further report on 14 October 2003 (exhibit 7).  It supports his earlier report of 1 November 2002 and clarifies the diagnostic process which he undertook.

21.     Dr Perreboom prepared a report on 4 February 2004 (exhibit 8).  He says

I think that the plantar fasciitis that Mr Hess describes is more likely to be a degenerative condition rather than one caused by his employment.

Dr Perreboom then describes the causes of plantar fasciitis:

Normally, there are three types of problems with plantar fasciitis.   Those individuals have an enthesopathy which is a chronic inflammatory condition at the attachment of the plantar fascia.  Normally this tends to occur in very young individuals, and is associated with a plethora of entheses problems which Mr Hess does not have.

The other is a traumatic plantar fasciitis, but this is due to a stomping type injury and the patient can describe the instant that it occurred, and this has not happened to Mr Hess.

The other is a degenerative form.  In this, the structure of the plantar fascia becomes weaker and this causes the pain in the heel.

He concludes:

I think that this is the most likely problem associated with Mr Hess.

His employment would have aggravated the symptoms, but I don’t think that it actually aggravated the specific condition itself.

22.     Doctors Lewis, Saxby and Perreboom also gave oral evidence at the hearing in which they clarified the opinions they had given in their reports.

23.     Dr Perreboom reiterated plantar fasciitis was a degenerative condition, unlikely to have been caused by Mr Hess’ employment.  Dr Perreboom said Mr Hess had “pes cavus” – meaning Mr Hess had a very high arch.  The height of his arch meant Mr Hess would have experienced a greater weight on either end of his foot.  Pes cavus is congenital in nature.  Dr Perreboom said at most Mr Hess’ employment “may have aggravated the symptoms” of the condition.

24.     Dr Saxby said there was no causal link between the condition and employment (however he did not agree with Dr Perreboom’s diagnosis of pes cavus).  He also said there was no scientific evidence to support a connection between footwear or surfaces and the condition.

25.     Dr Lewis also disagreed with the diagnosis of pes cavus.  He said the condition might be connected with the shoes worn by Mr Hess.  He conceded the cause of plantar fasciitis was largely unknown.

Consideration and Conclusion

26.     The sole question for the Tribunal is whether there is a causal connection between Mr Hess’ condition and his employment with the Commonwealth.  Having considered all the medical evidence before me, I am satisfied there is no causal connection. There was no consensus amongst the medical experts as to the precise nature of the applicant’s problem, but I was particularly impressed by Dr Saxby’s explanation. I note he is an expert on foot and ankle problems. In any event, the preponderance of the medical evidence favours the conclusion that Mr Hess’s condition would have developed even if he had not worked for the RAAF. At most, the circumstances of his employment temporarily aggravated his condition.

27.     It follows the decision under review must be affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         .....................................................................................
  Associate: Thomas Ritchie

Date/s of Hearing: 6 - 7 May 2004
Date of Decision: 6 August 2004
The applicant was represented by Mr King-Scott of counsel.
The respondent was represented by Mr Clark of counsel.