JEFFREY WADE and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2009] AATA 498

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 498

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0435

VETERANS' APPEALS DIVISION		)
Re		JEFFREY WADE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date1 June 2009

PlaceBrisbane

Decision The Tribunal affirms the reviewable decision.

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

Senior Member

CATCHWORDS

COMPENSATION – Claims – Claim for right knee and left hip conditions – Accepted claim for left knee condition – Whether liability to pay compensation should be extended to new claimed conditions – Respondent not liable – Decision affirmed

Safety, Rehabilitation and Compensation Act 1988 s 14

REASONS FOR DECISION

1 June 2009 Senior Member Bernard J McCabe         

1. This was an application from Mr Jeffrey Wade, the applicant, to review a decision made on 5 December 2008 by the Military Rehabilitation and Compensation Commission, the respondent, which affirmed a determination dated 7 July 2007 that refused to extend liability for the applicant’s claimed right knee and left hip conditions. I note the applicant has an accepted left knee condition, but that was not an issue in these proceedings. Mr Wade asked the Tribunal to reconsider that reviewable decision. In particular, Mr Wade asked the Tribunal to find that the respondent was liable pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 for his current conditions. A hearing was convened on

   
   

   1 June 2009 to consider Mr Wade’s application. I gave an oral decision at the conclusion of that hearing, which affirmed the reviewable decision. The application subsequently requested written reasons. These reasons have been distilled from the transcript.

2. Mr Wade produced some new medical evidence that referred to an injury he suffered in 1961 when he was apparently thrown from a bunk while he was aboard HMAS Melbourne. The medical evidence recorded that he sustained a head injury in that fall, and it appeared, from some of the evidence, that he may also have landed on his left hip, or at least sustained some sort of injury to his left side, when he landed. Mr Wade did not remember the events in question, perhaps understandably because of the head injury. His head injury was certainly the focus of the medical treatment that followed over the next few months. He tendered a treatment report which he said he obtained from the National Archives. He said it provided a contemporaneous record of concerns being noted about the left side hip.

3. In a puzzling development, the respondent tendered another copy of what appeared to be the same treatment report which it had received from the National Archives. Some of the text of the report was different. Ultimately, I did not have to resolve a factual dispute about the authenticity of the treatment report because I was prepared to assume for the purposes of the exercise that Mr Wade experienced a fall in 1961 from his bunk in which he impacted on the deck of the ship on his left side and may in the course of doing so have injured his left hip.

4. In order to establish liability it is necessary for the Tribunal to be satisfied not only that an injury occurred and that a disease or a condition exists but also that there is a causal connection between those two things. A connection can be traced in one of two ways. The first way is for the Tribunal to be satisfied that Mr Wade’s right knee and left hip conditions developed as a result of his accepted left knee condition by virtue of some effect on his gait or weight imbalances. The conditions may be, to use the old language, a sequela of the left knee condition. The second way in which he might establish a causal connection is by establishing that the left hip condition developed in response to the trauma that was sustained in the fall he experienced in 1961.

5. In respect of the first way, there was some medical evidence on the Tribunal’s file, some of which is quite old. I note Dr Rina Kennedy, who was the applicant’s treating general practitioner, was of the view that there might be a connection between the accepted left knee condition and the right knee and left hip as a result of weight distribution and gait issues. Dr Hugh English, however, who is a well-credentialed expert with considerable experience in dealing with hips and knees, said that there was no connection between disabilities in the different joints. He referred to some research on the topic which supported his view that a left knee condition would not cause the right knee and left hip conditions.

6. Regarding the second way, the applicant was unable to point me to any direct medical evidence or any medical opinion that established a connection or that posited a connection between the fall and his left hip condition. I am not aware there was any suggestion of a connection between the fall and the right knee. Nonetheless, Mr Wade was not able to refer me to opinion evidence that there was in his case a connection between the fall and the left hip. Against that, I have the evidence, once again, of Dr English, who said it was most unlikely that there was a connection, because, in his view, it was likely that the fall resulted in, at most, a soft tissue injury. According to Dr English, soft tissue injuries do not have the sort of long-term effects of the kind experienced by Mr Wade.

7. Mr Wade suffers from a number of medical conditions in addition to the ones that he referred to in the course of these proceedings, and he is, understandably, looking for an explanation for why those things are occurring to him. He asked, not unreasonably, whether there can be any connection between things that happened to him in his service, prior to which he was a healthy man, and his subsequent ill health. At the end of the day, the Tribunal has to be guided by the medical evidence that is available to it. That medical evidence clearly says that there is no connection between the applicant’s service and his right knee and left hip conditions. In those circumstances, I have to affirm the reviewable decision.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.............................[Sgd].................................................
  Michael Buckingham, Associate

Date of Hearing  1 June 2009
Date of Decision  1 June 2009
Date of Written Reasons          2 July 2009
Applicant was self-represented
Counsel for the respondent      Mr C Clark
Solicitor for the respondent     Australian Government Solicitor