Katterns and Military Rehabilitation and Compensation Commission (Compensation)
[2016] AATA 1075
•22 December 2016
Katterns and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 1075 (22 December 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2015/4288
Re
Gregory Katterns
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 22 December 2016 Place Brisbane I set aside the decision under review. In substitution, I decide that compensation is payable to the applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the osteoarthritis of the right hip that was aggravated by the reserve military service of the applicant.
.....................................[sgd]...................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for compensation for an injury - osteoarthritis of the right hip – condition aggravated by the reserve military service of the applicant – decision under review set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14, 60, 62
CASES
Kowalski v Military Rehabilitation and Compensation Commission (2011) 191 FCR 345; [2011] FCAFC 44
Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15
Comcare v Canute (2005) 148 FCR 232; [2005] FCAFC 262
Comcare v Power (2015) 149 ALD 286; [2015] FCA 1502
Crathern and Military Relation and Compensation Commission [2006] AATA 1089REASONS FOR DECISION
Deputy President Dr P McDermott RFD
22 December 2016
INTRODUCTION
I have to determine whether the Military Rehabilitation and Compensation Commission (“the respondent”) is liable to pay compensation to Mr Gregory Katterns (“the applicant”) under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for his claim for “osteoarthritis of the right hip”. At the hearing of this application no witnesses were called by either party although the applicant himself gave oral evidence.
BACKGROUND
Service history
The applicant served in the Army Reserves as a commissioned officer from 1984 until 2001. He was transferred to the inactive reserve in 1991. During his service he underwent a number of training courses in 1986 and 1989. He also attended a number of camps between 1985 until 1991.[1]
[1] Exhibit C, Service medical records and personnel records.
Prior decisions
On 16 September 2014, a determination was made to disallow the applicant’s claim for compensation under the Act in respect of a condition referred to as “osteoarthritis of the right hip”.[2] On 8 July 2015, a decision was made to affirm the determination dated 16 September 2014.[3] The latter determination is a reviewable decision under ss 60 and 62 of the Act.
[2] Exhibit A, T-Documents T12.
[3] Exhibit A, T-Documents T25.
Service medical documentation
In his entry medical questionnaire of 16 June 1984 the applicant declared that he had a knee injury. The medical officer confirmed that the applicant had meniscectomy procedures to his left and right knees in 1974 and 1978 respectively.[4]
[4] Exhibit C, Service medical records and personnel records.
Claimant reports
On 23 June 2004, the applicant completed two claimant reports.[5]
[5] Exhibit J, Respondent’s Statement of Issues, Facts and Contentions dated 18 March 2016 with attachments at attachment 2.
In one report the applicant stated that he had been engaged in range practice between 6 and 8 April 1990, driver training between 4 and 6 May 1990 and infantry training in September 1990. The applicant claimed that his back had been injured by his performing the following tasks:[6]
6-8 April - Carrying/loading ammunition boxes. Flexion/bending forward, extension backwards + twisting w/- loads onto vehicles.
4-6 May - Heavy Vehicle Dvr Trg - changing truck tyres.
Sept 90 - Infantry training, dismounting from trucks & armoured vehicles at a height from more than 1.3m, while carrying heavy packs and weapon loads.
[6] Ibid.
In another report the applicant claimed he engaged in repetitive and persistent flexion between 1985 and 1991 while an infantry and engineer soldier.[7] The applicant claimed to have lifted weights between 25kg and 65kg, twenty times per day and once per week. He explained the duties performed as:[8]
Over distances -> carrying packs and loads of tools, weapons and ammunition. (L)ifting and packing loads onto trucks and carrying packs, bridges mech. (W)orking w/- heavy vehicles - truck tyres & maintenance work, rafting, bridge work. (I)nstructional land warfare training - digging/construction of barricades and defences - manual work. (C)arrying infantry packs up to 50kg + over long distance(s) 15km to 40km in < 24h.
Note: Field Troop work in Combat Engineers while serving with 5 Field Engineer Regt and later at Enoggera Barracks with 29 SPT/TP of 2/3 FER (combat unit) did involve a lot of manual labour work in bridge building over wet and dry gap crossings where mechanical machines could not always access!
[7] Ibid at attachment 3.
[8] Ibid.
In his ‘Injury or Disease Details Sheet’ dated 28 March 2013, the applicant stated that his service contributed to his condition of osteoarthritis of both hips on the basis of “weight bearing, as a result of implementing allocated engineering duties during service”.[9]
[9] Ibid at attachment 4.
Claims history
In 2006, liability was accepted for an aggravation of bilateral knee osteoarthritis under s 14 of the Act.
On 4 April 2014, the applicant sought acceptance of liability for bilateral knee replacement surgery as well as the degeneration of his osteoarthritis in his right hip. He asserted that the degeneration of his osteoarthritis in his right hip was related to his knees, relying upon oral advice given to him by Dr Reidy of the Gold Coast Hospital.[10] On 28 April 2014, Ms Paver, orthopaedic intern, reported that “(i)t is likely that there is a relationship between the arthritis in his hip and knees where they have contributed to each other's progression”.[11] An X-ray of the applicant's right hip on 2 September 2014 revealed “moderate/severe degeneration... with moderate joint space narrowing, subchondral sclerosis, capsular calcifications, and marginal osteophyte formation”. Dr Dupre also noted that there was no significant degeneration within the left hip.[12]
[10] Exhibit A, T-Documents, T4.
[11] Exhibit A, T-Documents, T5.
[12] Exhibit A, T-Documents, T10.
The claim was denied by determination dated 16 September 2014.[13] In a letter dated 25 September 2014, the applicant requested reconsideration of the determination.[14] The applicant claimed that he “endure[d]” right hip pain from 1984 onwards (which is from the time when he enlisted in the reserves).[15] The applicant claimed that extensive weight bearing exercises undertaken in the reserves contributed to his condition.
[13] Exhibit A, T-Documents, T12.
[14] Exhibit A, T-Documents, T13.
[15] Ibid at p. 57.
Specialist medical reports
Dr Sharwood, orthopaedic surgeon, has completed three reports on the osteoarthritis condition of the applicant dated 8 September 2014, 16 February 2015 and 27 March 2015.[16]
[16] Exhibit A, T-Documents, T11, T20 and T24,
In his report dated 27 March 2015 Dr Sharwood remarked:[17]
In my opinion the osteoarthritis suffered by Mr Katterns is essentially constitutional. Osteoarthritis has a multifactorial aetiology, the vast majority being constitutional. Other factors which may contribute to the onset of osteoarthritis of the hip include trauma which is specifically an injury to the joint affecting the articular surface or perhaps excessive stresses placed upon a joint as a result of excessive load carrying and specifically obesity do contribute to the acceleration of the onset of osteoarthritis.
If the degree of excessive stresses placed upon the joint as described by Mr Katterns are accepted as being a causative or accelerative factor, and this is possible, part of the aetiology may be related to this.
[17] Exhibit A, T-Documents, T24 at p. 86.
On 29 September 2015, Dr Reidy, orthopaedic surgeon, remarked in his report:[18]
This is to confirm that I am an orthopaedic surgeon at Gold Coast University Hospital and I operated on Mr Katterns osteoarthritic knees bilaterally.
He has asked me to give an opinion on the contribution of the knees towards his hip arthritis. I note that the report by Dr Sharwood on 27th of March 2015 in which Dr Sharwood has conceded that the degree of contribution to be 25% due to effective stresses as described by Mr Katterns in contribution to the arthritis of his right hip, I would concur with this statement.
Mr Katterns feels that his knees are directly contributed to his hip arthritis and as I have explained this is impossible to confirm or to deny. The knees certainly may well have been an aggravating factor but it is difficult to ascertain as to what extent.
[18] Exhibit B, Medical documents lodged by applicant: Report of Dr Reidy dated 29 September 2015.
LEGISLATIVE FRAMEWORK
As the reserve service of the applicant preceded the 2007 amendments to the Act it is fair to apply the “material degree” test in s 4 of the Act as it stood prior to 13 April 2007. Certainly the letter that the respondent wrote to Dr Sharwood on 10 March 2015 requested an opinion based on the material degree test and not the significant contribution test under the 2007 amendments.[19] The respondent was correct in seeking an expert opinion based on the material degree test having regard to the operation of s 7(4) of the Act. The applicant had first claimed to have experienced an “impairment” in terms of s 7(4)(b) of the Act as early as 1984 in the form of hip pain.[20] There was no challenge to this account of the applicant. All of the reserve service of the applicant occurred before the 2007 amendments took effect.
[19] Exhibit A, T-Documents, T23.
[20] Exhibit A, T-Documents, T13 at p. 57.
Prior to 13 April 2007, “disease” was defined in s 4(1) of the Act in the following terms:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
In Kowalski v Military Rehabilitation and Compensation Commission (2011) 191 FCR 345; [2011] FCAFC 44, Dowsett J remarked at [23]:
The word “material” is defined in the Shorter Oxford Dictionary (4th ed, Clarendon Press, 1993) at 1713) to mean, for the purposes of American law, “having a logical connection with the facts at issue” and, for the purposes of British law, “significant, influential, especially to the extent of determining a cause, affecting a judgment, etc”. In Comcare v Sahu-Khan (2007) 156 FCR 536 at [16], Finn J observed that use of the word “material” in the SRC Act created a requirement for a stronger causal relationship between the employment and the ailment suffered than that required by the 1971 Act. That may be so, but the difference is very much one of degree.
Section 14 of the Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance
with this Act in respect of an injury suffered by an employee if the injury
results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally
self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the
serious and wilful misconduct of the employee but is not intentionally self-
inflicted, unless the injury results in death, or serious and permanent
impairment.
CONTENTIONS
The applicant contends that his knee condition contributed to the onset of the osteoarthritis of the hip condition.
The respondent contends that the medical evidence does not establish that the applicant's condition was either materially contributed (if the condition arose before 13 April 2007) or significantly contributed (if the condition arose post 13 April 2007) to by the applicant's military service in the Army Reserves. The respondent further contends that the medical reports do not establish that the material or significant contribution tests are met having regard to the authorities of Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15, Comcare v Canute (2005) 148 FCR 232; [2005] FCAFC 262 and Comcare v Power (2015) 149 ALD 286; [2015] FCA 1502.
CONSIDERATION
The applicant had sustained knee conditions before his military service. Dr Vecchio in his report of 30 May 2006 has referred to the fact that the 1984 medical records identify that the applicant sustained a right knee injury as well as indicating that he had undergone a right knee meniscectomy in 1974 and a left knee meniscectomy in 1978.[21] The respondent has already accepted liability for the aggravation to the applicant’s osteoarthritis of the knees. Dr Vecchio considered that applicant’s work as a builder for ten years before his military enlistment would have definitely been contributed to by his knee conditions.[22]
[21] Exhibit G, Report of Dr Vecchio dated 30 May 2006 at p. 2.
[22] Ibid at p. 3.
I have to determine whether the military service of the applicant contributed to his claimed condition: osteoarthritis of the hip. Dr Hameed, the treating general practitioner of the applicant, in his report of 3 October 2015 has opined: “It is possible, therefore, that the knee could have been the cause of his hip pains and osteoarthritis”.[23] Dr Reidy similarly raises the possibility that the knees have directly contributed to his hip arthritic, but he has also quite properly recognised that “this is impossible to confirm or to deny. The knees certainly may well have been an aggravating factor but it is difficult to ascertain as to what extent”.[24]
[23] Exhibit B, Medical documents lodged by applicant: Report of Dr Hameed dated 3 October 2015.
[24] Exhibit B, Medical documents lodged by applicant: Report of Dr Reidy dated 29 September 2015.
Dr Sharwood, orthopaedic surgeon, has expressed the opinion that osteoarthritis of the hip condition is a constitutional condition. Dr Sharwood has explained that osteoarthritis has a multifactorial aetiology and the vast majority of cases are constitutional.[25]
[25] Exhibit A, T-Documents, T24 at p. 86.
The respondent wrote to Dr Sharwood on 4 March 2015 requesting him to clarify whether the osteoarthritis of the right hip was caused, aggravated or exacerbated by some aspect of the applicant’s military duties in a material degree having regard to probability.[26] In his report of 27 March 2015, Dr Sharwood remarked:[27]
In summary the current condition of osteoarthritis of the hip is constitutional. The onset may have been accelerated by some aspects of Mr Katterns’ Military service as described and this has been accepted under some legislation. Therefore I would believe it is reasonable to say that it is probable that Mr Katterns’ military service accelerated onset of his osteoarthritis of the right hip. I would concede the degree of contribution to be 25 percent due to excessive stresses as described by Mr Katterns.
[26] Exhibit A, T-Documents, T23, p. 84.
[27] Exhibit A, T-Documents, T24 at p. 87.
Having regard to the fact that Dr Sharwood was asked to give an opinion based on the material degree test it would not be fair to apply the significant contribution test that the respondent contended at the hearing was relevant.
In Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15, Finn J emphasised at [16] that the expression “in a material degree” in s 4 of the Act requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment. His Honour remarked that whether this will be so in a given case will be a matter of fact and degree. Having regard to the conclusion of Dr Sharwood that it is probable that the applicant’s military service accelerated the onset of his osteoarthritis of the right hip, in my opinion, what Finn J has referred to as the “threshold evaluation” has been met.
In Kowalski v Military Rehabilitation and Compensation Commission (2011) 191 FCR 345; [2011] FCAFC 44, Dowsett J made observations on the meaning of the word “material”. Having regard to the opinion of Dr Sharwood, I consider that the military service was “influential” in the onset of the osteoarthritis condition of the right hip.
It is also relevant to my consideration that the applicant was, quite properly, not challenged on the content of his claimant reports in which he outlined his duties that required him to engage in heavy lifting.
For the sake of completeness, I should record that I do not accept the submission of the applicant that the osteoarthritis of the right hip condition was aggravated by the knee condition of the applicant. While Dr Reidy has raised the possibility that the knees have been a factor in the operation of the hip condition,[28] this is insufficient to found a basis for liability under the Act. In Crathern and Military Relation and Compensation Commission [2006] AATA 1089, Member Webb at [10] explained that the balance of probabilities requires more than “a mere possibility or conjecture” in determining whether the “material contribution” test is satisfied. The opinion of the orthopaedic intern dated 28 April 2014 that it was likely that there is a relationship between the hip and knees was not supported with any reasoning.[29] Dr Sharwood in his report of 16 February 2015 has concluded that there is that there is no casual connection between the knee condition and the osteoarthritis of the right hip and has mentioned that there is no known correlation or literature that supports such a correlation.[30] This evidence of Dr Sharwood was not challenged by the applicant, who declined to cross-examine Dr Sharwood.
[28] Exhibit B, Medical documents lodged by applicant: Report of Dr Reidy dated 29 September 2015.
[29] Exhibit A, T-Documents, T5.
[30] Exhibit A, T-Documents, T20 at p. 74.
CONCLUSION
I find that the osteoarthritis of the right hip of the applicant is a disease within the meaning of the former s 4(1) of the Act being an ailment. I find that the aggravation of the osteoarthritis of the right hip of the applicant is a disease that was contributed to in a material degree by the military service of the applicant being the employment of the applicant by the Commonwealth.
Determining the date of onset of the disease is not without some difficulty. Although Dr Sharwood was listed as a witness he could not be questioned on this issue because he was not called. Certainly there can be no doubt that in July 2014 the osteoarthritis of the right hip was diagnosed.[31] I should, however, consider whether there was an earlier onset of the condition. Dr Sharwood has commented that there was no formal diagnosis of the condition in 1995 or before July 2004.[32] The onset of a condition can be on a particular date despite there being no formal diagnosis on that date.
[31] Exhibit A, T-Documents, T24 at p. 86.
[32] Ibid at pp. 86-87.
It would be fair to determine that the date of onset of the disease had occurred by 1994 at the latest. In June 2012 the records of Dr Hameed refer to the advanced degeneration of the right hip joint which required the applicant to walk with a stick.[33] Having regard to the advanced degeneration of the joint it is fair to make an inference that the onset of the hip was sometime before 2012. Indeed the applicant has complained of hip pain as early as 1984 and he was not challenged on this account. Dr Vecchio reported upon the aggravating events with manoeuvres in 1993 and 1994.[34] This is when the applicant experienced the excessive stresses that Dr Sharwood considers accelerated the onset of his hip condition. Certainly, when the respondent wrote to Dr Sharwood on 10 March 2015 to seek an opinion based on the material degree test there seems to have been an assumption that the aggravation occurred before the 2007 amendments.[35]
[33] Exhibit D, Summons records: Koorara Medical Practice, p. 25.
[34] Exhibit G, Medical report of Dr Vecchio dated 30 May 2006 at p. 10.
[35] Exhibit A. T-Documents, T23.
DECISION
I set aside the decision under review. In substitution, I decide that compensation is payable to the applicant under s 14 of the Act in respect of the osteoarthritis of the right hip that was aggravated by the reserve military service of the applicant.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD .............................[sgd]...........................................
Associate
Dated 22 December 2016
Date(s) of hearing 28 June 2016 Date final evidence received 8 December 2016 Applicant In person Solicitors for the Respondent Sparke Helmore
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