Katterns and Military Rehabilitation and Compensation Commission (Compensation)

[2018] AATA 4462

Katterns and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 4462 (30 November 2018)

Division:VETERANS' APPEALS DIVISION

File Numbers:         2015/4288; 2016/6778 and 2017/4641

Re:Gregory Katterns

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Deputy President I R Molloy

Date:30 November 2018

Place:Brisbane

The Tribunal affirms each of the reviewable decisions.

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Deputy President I R Molloy

CATCHWORDS

COMPENSATION – Service Injury or Disease – Medical Evidence – Reviewable Decisions Affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Deputy President I R Molloy

30 November 2018

1. The applicant, Gregory Katterns, was born on 11 February 1954. He enlisted in the Australian Army Reserves on 16 June 1984. He was transferred to inactive reserves on 30 November 1991 and was discharged from the Reserves on 11 February 2001.

   APPLICATIONS

2. By separate applications, heard together, Mr Katterns seeks review of the following decisions:

   (a)A decision dated 8 July 2015, affirming a determination dated 16 September 2014, that Mr Katterns is not entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) in respect of osteoarthritis of the right hip;[1]

   (b)A decision of 31 October 2016, affirming a determination dated 28 June 2016, that Mr Katterns is not entitled to compensation under the SRC Act in relation to his claimed conditions of femoral abduction, limb length discrepancy, and bilateral pes planus;[2] and

   (c)A decision dated 18 May 2017, affirming a determination dated 28 February 2017, denying liability under s 14 of the SRC Act for the claimed condition of bilateral exostoses of the external ear canal.

   [1] Exhibit A, T Documents (2015/4288), T25, pp. 89-92.

   [2] Exhibit K, T Documents, T12, pp. 61-67.

3. I should mention that liability under the SRC Act was previously accepted for service-related conditions of mild bilateral high tone sensorineural hearing loss, and in 2006 for an aggravation of bilateral knee osteoarthritis.

   Osteoarthritis of the right hip

4. This is a rehearing of this application following an appeal to the Federal Court by the respondent. The reasons for the court remitting the application are contained in the Court’s reasons of 7 June 2017.

5. For the avoidance of doubt, I should mention that this is a fresh hearing. I am not bound by anything previously decided by the Tribunal or in the reviewable decision. I will, of course, follow the decision of the Federal Court.

6. It is not in dispute that Mr Katterns suffered from osteoarthritis of the right hip. He has undergone a total hip replacement and on all accounts (including his own) this has brought about a successful result.

7. The principal issues are:

   (a)What was the date of onset of the condition, which by definition under the SRC Act is a “disease”, and, depending on the answer to that question;

   (b)Was the condition:

   (i)“materially” contributed to by Mr Katterns’ military service, or

   (ii)contributed to, “to a significant degree” by his service.

8. One important reason for dating the onset of the condition is that changes were made to the SRC Act on 13 April 2007 which introduced the more demanding test for diseases suffered on or after that date.

9. Section 7(4) of the SRC Act, which was not the subject of amendment, provides that an employee shall be taken to have sustained a disease, or aggravation of a disease, on the day when, relevantly:

   (a)the employee first sought medical treatment for the disease, or aggravation; or

   (b)the disease or aggravation first resulted in incapacity for work, or impairment of the employee,

   whichever happens first. 

10. I am not satisfied that Mr Katterns sought medical treatment for his right hip condition prior to 13 April 2007.

11. Dr Peter Sharwood, orthopaedic surgeon, has provided four medical reports, dated 8 September 2014, 16 February 2015, 27 March 2015,[3] and 26 October 2017.[4] In the course of providing those reports Dr Sharwood has reviewed Mr Katterns’ medical records provided to him. He could not find any evidence that Mr Katterns sought treatment for his right hip before May 2012. 

    [3] Exhibit A, T Documents T11, p. 34, T20, p. 73 and T24, p. 85.

    [4] Exhibit N, Report of Dr Peter Sharwood dated 26 October 2017.

12. During the hearing Mr Katterns tried to relate his hip condition to other complaints for which he sought treatment in the years prior to 2007, for example, in respect of his back.

13. Mr Katterns produced further medical records as part of his written response to Dr Sharwood’s reports. As I have said I am not satisfied, including having regard to this evidence, that Mr Katterns did seek medical treatment for his right hip any earlier than May 2012.  

14. Nor did the claimed condition result in Mr Katterns’ incapacity for work prior to that date. 

15. As to “impairment”, s 4(1) the SRC Act defines that term to mean:

    “[T]he loss, the loss of use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such a function.”

16. Mr Katterns says that he complained of hip pain as early as 1984. Pain per se does not constitute impairment. Moreover, I am not satisfied that Mr Katterns did complain of hip pain as he alleges. There is no documentary evidence which satisfies me that such a complaint was made. The medical records Mr Katterns relies on refer to other complaints. He seems to equate some of these matters to his later hip condition.

17. In his 2017 report Dr Sharwood noted that a radiologist’s report of a CT scan of Mr Katterns’ pelvis, conducted on 24 March 2009, did not mention osteoarthritis of the right hip. Dr Sharwood would have expected this to be mentioned, if it existed, especially as the report did mention significant lumbar spondylosis.[5]

    [5] Exhibit N, Report of Dr Peter Sharwood dated 26 October 2017, p. 3.

18. Dr Sharwood concluded that Mr Katterns’ osteoarthritis of the right hip developed some time after that date.[6]

    [6] Exhibit N, Report of Dr Peter Sharwood dated 26 October 2017, p. 3.

19. I am satisfied on all the evidence that, for the purposes of his claim, and within the meaning of the SRC Act, Mr Katterns did not suffer the onset of osteoarthritis of the right hip prior to 13 April 2007. I find that the earliest date of its onset was in May 2012.[7]

    [7] Exhibit N, Report of Dr Peter Sharwood dated 26 October 2017, p. 3.

20. That means that the more stringent test requiring that Mr Katterns’ service constituted a significant contribution to his condition applies.

21. In his 2017 report Dr Sharwood noted Mr Katterns did not engage in active service after 1991, a matter of which Dr Sharwood did not previously appreciate. With this information, Dr Sharwood’s view is that there was no relationship between Mr Katterns’ right hip osteoarthritis and his military service.

22. He says:[8]

    “His military service may have placed some additional stressors on his hip but in the absence of any recorded actual injury there is no evidence that military service had any contribution to his hip pathology …”

    [8] Exhibit N, Report of Dr Peter Sharwood dated 26 October 2017, p. 7.

23. Dr Sharwood was also of the opinion that Mr Katterns’ osteoarthritis of the hip was not related to his osteoarthritis of the knee/s. Dr Sharwood provides convincing reasons for this, including by reference to research and publications, which I accept.[9]

    [9] Exhibit N, Report of Dr Peter Sharwood dated 26 October 2017, p. 7.

24. This is consistent with what Dr Robert Ivers, another orthopaedic surgeon, has to say. He considered that Mr Katterns’ requirement for surgery to the right hip was unrelated to his military service in any way; that he had developed constitutional right hip osteoarthritis; and there was no connection with Mr Katterns’ osteoarthritis of the knees.[10]

    [10] Exhibit K, Report of Dr Robert Ivers dated 12 October 2016, p. 58

25. I prefer this evidence to what Dr Reidy, also an orthopaedic surgeon, had to say in his report dated 8 September 2015. He said that it was impossible to confirm or deny whether Mr Katterns’ knees directly contributed to his hip arthritis, and that “the knees certainly may well have been an aggregating factor but it is difficult to ascertain as to what extent”.[11] However, in oral evidence, Dr Reidy conceded he was not aware of any correlation between Mr Katterns’ degenerative knee conditions and his right hip osteoarthritis.

    [11] Exhibit B, Report of Dr James Reidy dated 29 September 2015.

26. I also prefer Dr Sharwood’s opinion to that of Dr Hameed, a general practitioner, who in a report dated 3 October 2015, said it was possible that the knee could have been the cause of his hip pains and osteoarthritis, and also that of Dr Paver, orthopaedic intern, who said in a brief report dated 28 April 2014, “it is likely there is a relationship” between the arthritis in Mr Katterns’ hip and knees where they have contributed to each other’s progression.[12]

    [12] Exhibit A, T Documents, T5, p. 13.

27. The result is I am not satisfied that Mr Katterns’ right hip osteoarthritis condition was significantly contributed to by his employment in the Army Reserves. The evidence is such that, even if the material contribution test were applicable, my decision would be no different.

28. Accordingly, the reviewable decision dated 8 July 2015 is affirmed.

    Femoral abduction, limb length discrepancy, bilateral pes planus

29. The first diagnosis related to these claimed conditions was made by Daniel Bagnall, podiatrist, in a report dated 13 April 2016.[13] He recommended Mr Katterns have custom orthotics made to address the pain Mr Katterns was experiencing as result of the alleged conditions.

    [13] Exhibit K, T Documents, T4, pp. 21-22.

30. Although Mr Katterns referred to “left femoral abduction” in his claim for compensation, Mr Bagnall referred to “femoral adduction”. The difference in the two conditions was explained by Dr Ivers while giving evidence. They are quite different.

31. Mr Katterns says he noticed the claimed conditions in August 1986. If this is so, he does not appear to have been sufficiently concerned to seek medical treatment until April 2016.

32. In the injury and disease details sheet dated 14 April 2016,[14] Mr Katterns claimed that the claimed conditions started after he underwent surgery on his knees and right hip and, that the conditions were caused by “constant aggravation of my foot, ankles and gait on my extensive army military forced marches with full packs and weapons. 5km, 10km, 15km or more distances – made worse by my ongoing bilateral knee conditions.”

    [14] Exhibit K, T Documents, T6, pp. 31-32.

33. In his claim for compensation, Mr Katterns stated that his bilateral knee conditions caused his conditions.

34. I am not satisfied that the date of onset of any of the alleged conditions was prior to 13 April 2007. Based on the above evidence, under the SRC Act, if there was an onset at all, it was in April 2016, thereby engaging the significant degree test.

35. Dr Bookless, orthopaedic surgeon, in a report dated 25 May 2016,[15] considered that:

    (a)there is no bilateral pes planus condition;

    (b)there is no left femoral adduction deformity; and

    (c)while there may have been some leg length discrepancy at some point related to a fixed flexion deformity of an arthritic knee, it has since resolved with surgery and Mr Katterns no longer has leg length discrepancy.  

    [15] Exhibit K, T Documents, T7, pp. 33-41.`

36. Dr Ivers, in a report dated 12 October 2016, said it was difficult to measure, but he thought Mr Katterns’ right lower limb to be approximately 1 cm shorter than his left. He considered Mr Katterns was suffering from mild bilateral pes planus. However, Dr Ivers was unable to support a diagnosis of femoral abduction. In his supplementary report of 19 October 2017,[16] Dr Ivers referred to the condition of femoral adduction, not abduction (but stated that it was unclear what condition was being referred to). He could not find any support for this diagnosis.

    [16] Exhibit P, Report of Dr Ivers dated 19 October 2017.

37. Based on Dr Ivers’ evidence I am satisfied Mr Katterns has approximately 1cm leg length discrepancy and mild bilateral pes planus, but not that he suffers from femoral adduction (or abduction). I also accept Dr Ivers’ opinion that the leg length discrepancy, which he considered “irrelevant, from the point of view of function of the lower limb”, is related to Mr Katterns’ hip replacement surgery and not his previous knee condition or knee surgery.[17] I find, therefore, that no liability arises with respect to this condition.

    [17] Exhibit P, Report of Dr Ivers Dated 19 October 2017.

38. Dr Ivers considered that the bilateral pes planus condition was aggravated by Mr Katterns’ military service, but that the contribution was “minor”. In his report dated 19 October 2017, Dr Ivers stated “In the absence of a very significant injury to both feet, which would involve disruption of the complete plantar fascia, I do not consider that routine military activities or any sporting activities, for that matter, are involved in the causation of this condition.”[18]

    [18] Exhibit P, Report of Dr Ivers dated 19 October 2017.

39. There is no evidence (and no claim) that Mr Katterns sustained any such injury to his feet during his Reserve service. Accordingly, the significant degree threshold is not met.

40. No liability arises in respect of any of these claimed conditions. Consequently, the decision dated 31 October 2016 is affirmed.

    Bilateral exostoses of the external ear canal

41. There is no dispute that Mr Katterns suffers from the claimed condition.

42. In his injury or disease details sheet dated 3 August 2016,[19] Mr Katterns stated that the condition occurred on 23 March 1986 and that he first noticed symptoms on that date. He relies on a Medical Board Examination report dated 27 March 1986 which states “scars L eardrum > R – no significance.”[20]

    [19] Exhibit L, T Documents, T5, pp. 36-37.

    [20] Exhibit C, Service medical Records, p. 14.

43. Dr Frank Anning, ear, nose and throat surgeon, in a report dated 16 September 2016, said that any scarring on the eardrum had absolutely nothing to do with the development of exostoses. He also considered that if bilateral exostoses had been present when an audiologist or medical practitioner examined Mr Katterns, the condition would have been noted because where it exists it is a very obvious and common condition. Yet it is not noted on Mr Katterns’ Medical Board Examination of 25 March 1986.

44. I am satisfied, having regard to s 7(4) of the SRC Act, that the date of onset of the condition was in 2016 and, therefore, the significant contribution test applies.

45. The medical evidence, which I accept, is that the condition is generally the result of exposure to cold water and cold wind in a wet ear. Mr Katterns referred to various activities in the course of his service involving immersion or other exposure to cold, wet or damp conditions. On the other hand, from his teenage years Mr Katterns served and trained in surf life-saving clubs. He also surfed at various locations including the south coast of New South Wales and Victoria. Mr Katterns also acknowledges that he has swum for exercise more or less regularly since his discharge albeit often with earplugs or a cap. 

46. Dr Alex Bordujenko prepared a Minute to the Commission on 26 April 2017 in which he stated that “while some contribution may have been present from the eligible service which ended in 2001, it is clear that Mr Katterns has a long history of recreational immersion activities and that most of the contribution to this condition would have been during his regular recreational activities including open water swimming over many years.”

47. Dr Bordujenko considered that a “generous estimate of possible service contribution to be in the order of one quarter with at least three quarters being due to non-service related exposure.”

48. Dr Anning, in his final report dated 16 October 2017, said:[21]

    “Exostoses requires long term, prolonged exposure to cold water or wind. Mr Katterns who had admitted to being a keen swimmer and doing a lot of swimming for his rehabilitation has had ample time since his discharge from the armed forces to the present, to develop exostoses separately from causation in the armed forces. I would consider on reflection, and having read the documentation, that the contribution to the cold exposure in the armed forces has had a minimal effect on Mr Katterns development of exostoses. The contribution from the armed forces ceases immediately he leaves the armed forces. The condition is not progressive without further exposure to the cold. As I can find no evidence of his being treated between December 1998 and 13 April 2007, that there is minimal contribution from military employment and his military employment does not continue to contribute to the Applicant’s current condition at all. The only continues exposure to cold will continue to grow exostoses.”

    [21] Exhibit O, Report of Dr Anning dated 16 October 2017

49. Even accepting Mr Katterns’ evidence of the frequency and extent of his exposure to the elements during his military service, I am not satisfied, having regard to the medical evidence, that his exostoses condition was contributed to, to a significant degree, by his military employment.

50. Accordingly, the decision dated 28 February 2017 should also be affirmed.

    DECISION

51. Each of the reviewable decisions is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

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Associate

Dated: 30 November 2018

Date of hearing:	5 November 2018
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers
Counsel for the Respondent:	Ms Kate Slack