Hurdle and Military Rehabilitation and Compensation Commission

[2007] AATA 1587

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1587

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200500331

VETERANS' APPEALS DIVISION		)
Re		WILLIAM HURDLE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Mr P McDermott, RFD, Senior Member
Dr M Denovan, Member

Date25 July 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Peter McDermott, RFD,Senior Member

CATCHWORDS

COMPENSATION – applicant was a serving member of the Royal Australian Air Force – whether applicant’s condition is related to his military service – medical evidence – appropriate diagnosis – condition considered to be temporary – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 27, 62

REASONS FOR DECISION

25 July 2007   Senior Member P McDermott, RFD
   Dr M Denovan, Member           

Introduction

1.      Mr William Hurdle is a serving member of the Royal Australian Air Force. He has a condition that he has sustained by reason of his employment with the Commission. We have to decide whether he is entitled to receive lump sum compensation in respect of this condition.

Background

2.      Mr Hurdle was 45 years of age at the date of the hearing. He enlisted in the Royal Australian Airforce on 24 October 1978. He served as a cook’s assistant for 2½ years and has served as a cook since then.

3.      In 1998 he presented to the military medical centre with a sore left foot. He was referred for an x-ray of the left great toe and the report dated 4 March 1998 (T5, folio 24) indicated that there was no osseous or articular abnormality evident. Mr Hurdle was referred to physiotherapy for treatment. At that time it was noted that he experienced left metatarsalgia and sesamoiditis of the left big toe and other metatarsal heads and also some discomfort but less severe in the right metatarsal heads (T5, folio 28).

4.      On 13 April 1998 he was discharged from physiotherapy. The contemporaneous notes indicated that he settled well with physiotherapy and orthotics and that he was discharged with no problems (T5).

5.      On 25 May 2001 Mr Hurdle presented at the military medical centre complaining of left and right feet problems, especially left. It was noted he was currently doing the GSI course and he had painful feet (T5 p 21). The report stated that his painful feet date back three years, and that the problem flares up when he is wearing GP boots. X-rays performed on the same date showed minimal degenerative change in both first MTP joints. Because of his foot pain, it was decided that GSI was not the most suitable mustering for Mr Hurdle and he was suspended from the course. Mr Hurdle was provided with orthotics and it was noted that these helped his pain by 85% (T5, folio 32).

6.      On or about 21 February 2002 the applicant lodged claims for rehabilitation and compensation in respect of injury to his right and left feet (T3 and T4). He stated in those claims that he first noticed his feet condition on 3 March 1998 and that it was the result of prolonged wearing of GP boots aggravated whilst deployed to East Timor and attending GSI course.

7.      In her report dated 8 April 2002, rehabilitation physician Dr S Blight opined that Mr Hurdle suffered from degenerative changes in both feet, particularly at the first metatarso-phalangeal joint of his left big toe and to a lesser extent his right big toe (T6). She considered that his military employment had contributed to and aggravated the degenerative changes in a material degree. Dr Blight opined that the applicant has whole person impairment under the Comcare Guide assessed under Table 9.2 as 10% for the left foot and 5% for the right foot. Under Table 9.5 he was assessed at 20% for the left foot and 20% for the right foot.

8.      In his report dated 11 July 2002, orthopaedic surgeon Dr Saxby diagnosed the condition bilateral foot arthritis mainly affecting the 1^st metatarso-phalangeal joint (T7). Dr Saxby opined that the condition was probably not principally caused by Mr Hurdle’s military employment, and that he would probably have contracted the disease or suffered aggravation, acceleration or recurrence of the disease if it had not been for his employment. Dr Saxby considered that prolonged standing and walking on his feet temporarily aggravated Mr Hurdle’s underlying condition, and the condition would likely cease if he was not required to stand on his feet for long periods. Dr Saxby noted Mr Hurdle experienced an exacerbation in pain as a result of his participation in GSI training in May 2001 (T7).

9.      In a decision dated 18 July 2002 the respondent disallowed Mr Hurdles claim (exhibit R1), on the basis that Dr Saxby in the above mentioned report indicated that the condition was probably not caused by service.

10.     Mr Hurdle asked for reconsideration of that decision. On 27 September 2002 the respondent varied the determination of 18 July 2002, and accepted liability for aggravation of bilateral foot arthritis for the duration of GSI training in May 2001 and deemed the date of injury to be 25 May 2001. That decision determined that liability ceased on 1 June 2001 (exhibit R2). The delegate preferred the opinion of Dr Saxby, over Dr Blight’s, because Dr Saxby is a foot and ankle expert.

11. On 25 February 2003, in accordance with section 62(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act), the respondent revoked the determination of 18 July 2002 and in its place found that Mr Hurdle continues to suffer from the affects of aggravation of bilateral foot arthritis, and that the condition did not cease on and from 1 July 2001 and liability for that condition continues under the SRCA (exhibit R3).

12.     In his report dated 11 June 2003, orthopaedic surgeon Dr N Hope opined that the appropriate diagnosis to explain Mr Hurdle’s symptoms in his feet was severe chronic bilateral plantar fasciitis, and said that it was a cumulative result of increased marching and continual working in the standing position (T9). Dr Hope said that this condition is entirely amenable to treatment.

13.     In a decision dated 20 June 2003, on the basis of the report of Dr Hope, the respondent amended the diagnosis of Mr Hurdle’s accepted condition to chronic bilateral plantar fasciitis and deemed the date of onset was 3 March 1998 (T11).

14. On 12 May 2004 the applicant requested that he be assessed for lump sum compensation pursuant to sections 24 and 27 of the Act (T14).

15.     In his report dated 16 September 2004 Dr R Thompson, gave an opinion that the diffuse distribution of pain claimed in each foot and history given were difficult to correlate with any discrete physical diagnosis.

16. On 27 September 2004 the respondent placed reliance on Dr Thompson’s opinion, and determined that the applicant was not entitled to payment under sections 24 and 27 of the Act (T16).That decision referred to Mr Hurdle’s condition as chronic bilateral plantar fasciitis.

17.     The applicant requested a reconsideration of the determination dated 27 September 2004 and on 11 May 2005 the respondent affirmed the determination dated 27 September 2004 (T21). That decision referred to Mr Hurdle’s accepted condition as aggravation of bilateral foot arthritis. This is the decision now under review by this Tribunal.

Issues For Determination

18.     We have to consider:

·What is the diagnosis of Mr Hurdle’s accepted foot condition, and

·Whether Mr Hurdle is entitled to compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 in respect to his foot condition.

Evidence of Applicant

19.     Mr Hurdle gave evidence before us. He outlined his employment history with the Royal Australian Air Force. He enlisted in 1978 and for the first 2.5 years he was a cook’s assistant. He then became a cook and continues to serve as a cook. His work involves long periods of standing, up to 12-14 hours a day, during which time he prepares one or two meals.

20.     Mr Hurdle stated that he had no problems with his feet until 1995 when he was guiding a trolley down a ramp, which hit his left foot first and then his right foot. The trolley was fully loaded with rations. He sought treatment a few days later, and was told that his feet were probably just bruised and would get better in a few weeks.

21.     His pain, located in the balls and across the top of the arches of his feet, did not ease. He continued with full duties and next sought treatment in 1998 when it was initially thought that he might have gout. Blood tests dismissed this possibility and he was sent to physiotherapy which eased his symptoms.

22.     Mr Hurdle was deployed to East Timor in 2000 and during that time as well as performing his duties as a Corporal cook supervisor, which required him to stand for up to 16 hours, he performed picket duties and manned observation posts. He stated that he was not worried about his feet at that stage of his service.

23.     Upon returning from East Timor Mr Hurdle was recommended to complete a GSI course to become a military skills instructor. Four weeks into that course he sought treatment for his feet which were painful because of repetitive marching. He was told by the medical staff that if he continued down the road of military skills he would not be able to walk within two years.

24.     He was given physiotherapy and orthotics. He saw Dr Hope and underwent treatment for six months, however appears to have experienced no improvement from the physiotherapy.

25.     He currently participates in compulsory physical training twice a week, usually at his own pace. He walks 2-5 km at his own pace, peddles an exercise bike and walks on a treadmill. Physical training makes his feet pain worse. He has difficulty walking up stairs and usually needs a hand rail. He has to go slowly up ramps. A couple of times he has rolled his ankle and fallen.

26.     Mr Hurdle said that he spent a total of ten minutes with Dr Thompson and about the same amount of time with Dr Saxby on the first appointment. He said that he was initially examined by another doctor, not Dr Saxby, and then Dr Saxby examined him briefly.

Medical Witnesses

27.     The first medical witness was Dr Brian Purssey, an orthopaedic surgeon. His report was admitted in evidence: report dated 19 September 2006 (exhibit A3).

28.     Dr Purssey confirmed that he considered the diagnosis to be that stated in his report: bilateral metatarsalgia associated with soft tissue trauma from the trolley injury in 1995 together with a minor degree of bilateral osteoarthrosis of the first metatarso phalangeal joints and a degree of sesamoiditis especially of the medial sesamoid bone. Dr Purssey also considered minorneuropraxia (nerve damage) of the cutaneous nerve to the medial side of the left hallux was correct and essentially the same as the diagnosis provided by Dr Saxby.

29.     Dr Purssey said that he came to this diagnosis on the basis that the history given to him was of the first onset of pain to be immediately following the trolley incident in 1995. He said that that injury would have been aggravated by physical training and by Mr Hurdle being on his feet for long periods. Dr Purssey said that he had accepted the history given as reliable and truthful when he made his conclusions.

30.     Dr Purssey agreed with the suggestion that Mr Hurdle may have been suffering with degeneration prior to the trolley incident and that incident may have merely aggravated the underlying degeneration.

31.     Dr Purssey expressed a high degree of respect for Dr Saxby whom he said was an expert in foot and ankle orthopaedics. He said however that he did not agree with Dr Saxby’s or Dr Thompson’s opinion that the diagnosis of early arthritis of his 1^st metatarso-phalangeal joint and sesamoiditis was inconsistent with Mr Hurdle’s functional difficulties. Dr Purssey acknowledged that his clinical findings were very different to those of Dr Blight.

32.     The next medical witness was Dr S Blight, a rehabilitation consultant. She has provided a report dated 8 April 2002 (T6). She said that her diagnosis was consistent with that of Dr Saxby and Dr Purssey.

33.     Dr Blight was unable to retrieve her clinical notes from archives, and so therefore had no record to indicate that she had performed objective testing of Mr Hurdle. She said that she had placed considerable weight on the history provided and the bone scan. Dr Blight said that painful metatarsal-phalangeal joints would stop a person walking and the symptoms would fluctuate from week to week.

34.     Dr Saxby has provided two reports, dated 11 July 2002 (T7) and 21 November 2006 (exhibit R4). Dr Saxby said that all people develop degenerative change over time and that Mr Hurdle’s condition was likely constitutional. He said that use of joints makes underlying degeneration worse, however if a person ceases the aggravating activities then there is no long term permanent aggravation.

35.     Dr Saxby referred to Mr Hurdle’s habit of walking on the outsides of his feet. He considered that this may indicate that Mr Hurdle’s symptoms were exaggerated as clinically there was no swelling and no deformity of Mr Hurdle’s feet joints and the degree of degeneration noted in the plain x-rays and bone scan was relatively mild. Dr Saxby said that he had many patients with considerably more severe arthritis and they do not walk in the manner Mr Hurdle does. Dr Saxby concluded that there appeared to be gross exaggeration of symptoms. Dr Saxby said that there was no diagnosis to explain the heel pain reported by the applicant.

36.     Dr Saxby said that he did not observe Mr Hurdle to be in any pain when he went up and down stairs. He did not however observe Mr Hurdle walking up and down slopes.

37.     Dr Saxby said that as Mr Hurdle’s problem appears to be minor it is hard to say what might aggravate it. He said that any weight bearing activity and any exercising could make his problem temporarily worse. Dr Saxby said that Mr Hurdle’s arthritis is permanent however opined that his work related problem is a temporary exaggeration of the underlying problem and will not lead to a material change in the underlying condition. Dr Saxby opined that Mr Hurdle’s arthritis will continue to get worse no matter what he does.

38.     The final witness was Dr Thompson, who has provided a report dated 16 September 2004. Dr Thompson said that he could not correlate any pathology with symptoms reported by Mr Hurdle. He said that the symptoms complained of by Mr Hurdle, and also the observed signs, were not consistent with any condition. Dr Thompson opined that the abnormalities noted on the bone scan of Mr Hurdle’s feet would be the same in any other person about the same age.

Findings of Tribunal

For what condition has liability been accepted?

39.     All of the medical experts agree that Mr Hurdle has bilateral foot arthritis, and with the exception of Dr Purssey, that this condition was likely present prior to the trolley incident.

40.     Dr Purssey concluded that Mr Hurdle suffered from bilateral foot arthritis as a result of the trolley incident in 1995. Dr Purssey stated that he relied heavily on the history provided by the applicant; in particular he relied on the fact that Mr Hurdle has suffered pain continuously since that incident. The contemporaneous medical evidence does not support the assertion that Mr Hurdle has suffered from bilateral foot pain since 1995. Mr Hurdle first sought medical treatment for feet pain in 1998, and did not mention the trolley incident in his original claim form. We do not consider that the trolley incident was the cause of Mr Hurdle’s bilateral foot arthritis. Dr Purssey agreed that bilateral foot arthritis may well have been present prior to the incident, and was aggravated by the incident.

41.     What is not agreed by all is what has caused Mr Hurdle’s ongoing foot signs and symptoms. Drs Purssey and Blight have opined that Mr Hurdle’s pain is due to aggravation of his bilateral foot arthritis. Dr Saxby agrees that Mr Hurdle suffers from some aggravation of his bilateral foot arthritis, however this would not explain the severity and complexity of Mr Hurdle’s symptoms.

42.     Dr Thompson and Dr Hope do not think Mr Hurdle’s signs and symptoms in his feet are related to his bilateral arthritis. Dr Hope suggested bilateral plantar fasciitis was responsible. Dr Thompson did not think there was any medical diagnosis that could explain Mr Hurdle’s signs and symptoms.

43.     No other doctor has provided support for the diagnosis of bilateral plantar fasciitis, and we place more weight on the opinion of Dr Saxby, who is considered an expert in the field of feet orthopaedics. It will be recalled that Dr Saxby diagnosed Mr Hurdle with bilateral foot arthritis, affecting mainly the first metatarso-phalangeal joint. His opinion that Mr Hurdle experiences some aggravation of this bilateral foot arthritis is consistent with the opinions of Dr Purssey and Dr Blight. We therefore conclude that Mr Hurdle’s condition for which liability has been accepted is best described as aggravation of bilateral foot arthritis.

Is the accepted condition permanent?

44. Payment of compensation under s24 and s27 is conditional upon the impairment being permanent.

45. Impairment is defined in s4(1) to mean likely to continue indefinitely. Section 24(2) sets out some of the factors to which the decision maker is to have regarded in determining whether impairment is permanent.

46.     Ms Philipson for the applicant submitted that Mr Hurdle’s aggravation of bilateral foot arthritis was a permanent condition. She referred to Dr Saxby as saying that whilst the applicant continued to work he was going to continue getting pain.

47.     Ms Philipson contended that Dr Saxby noted that Mr Hurdle walks on the lateral aspects of his feet, Dr Purssey referred to him hobbling, and Dr Blight referred to him having an unusual gait. She said that the findings of these three doctors pointed to Mr Hurdle having a permanent change in his gait and that it indicated that the aggravation of his bilateral foot arthritis was permanent.

48.     It was the evidence of Dr Blight that Mr Hurdle’s symptoms would likely vary from week to week. Dr Saxby gave clear evidence to the effect that the aggravation of foot arthritis experienced by Mr Hurdle due to his employment is only temporary and will not lead to a permanent change in the underlying condition. As stated previously, Dr Saxby is an acknowledged expert in the field of foot orthopaedics. His reports and oral evidence were comprehensive and we place considerable weight on his opinion.

49.     Dr Saxby questioned the reasons for Mr Hurdle walking on the sides of his feet and said that it was not consistent with the degree of arthritis suffered by him.

50.     We therefore conclude that the aggravation of bilateral foot arthritis is temporary only. Whilst Mr Hurdle has been observed by many doctors to have an altered gait, the medical explanation of this is not clear, and we do not accept that this indicates he has permanent aggravation of bilateral foot arthritis.

Decision

51.     The Tribunal affirms the decision under review.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr M Denovan, Member

Signed:         .......................[sgd].......................................................
  M Brazier, Legal Research Officer

Date/s of Hearing  21 March 2007
Date of Decision  25 July 2007
Counsel for Applicant                Ms K Philipson
Solicitor for Applicant                D’Arcys Solicitors
Counsel for Respondent           Mr C Clark
Solicitor for Respondent           Australian Government Solicitor