KEVIN EAGLE and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2010] AATA 584
•6 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 584
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2177
VETERANS' APPEALS DIVISION ) Re KEVIN EAGLE Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Ms K Hogan, Member
Date6 August 2010
PlacePerth
Decision The Tribunal affirms the decision under review. ..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
COMPENSATION – military compensation – applicant a member of Defence Force – applicant claimed he sustained fractured tooth while participating in battle course run in course of defence service – applicant unable to explain how or precisely when fractured tooth sustained – no medical or dental evidence regarding cause of applicant's fractured tooth – applicant's fractured tooth an injury – applicant's fractured tooth not a service injury or a service disease – compensation not payable to applicant for fractured tooth – decision under review affirmed
Military Rehabilitation and Compensation Act 2004 (Cth), s 5(1), s 6(1), s 23(1), s 27, s 335 and s 339
Military Rehabilitation and Compensation Commission v Roberts (2007) 93 ALD 554
Repatriation Commission v Smith (1987) 15 FCR 327
Roncevich v Repatriation Commission (2005) 222 CLR 115
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
6 August 2010 Deputy President S D Hotop
Ms K Hogan, MemberIntroduction
1. Kevin Eagle (“the applicant”) has been a member of the Australian Army Reserve from 11 August 2003. On 13 March 2007 he made a claim under s 319 of the Military Rehabilitation and Compensation Act 2004 (Cth) (“the MRC Act”) for acceptance by the Military Rehabilitation and Compensation Commission (“the respondent”) of liability for an injury which he described as "tooth injury” and which he claimed had occurred on or about 18 May 2005 when he was participating in an “Army Mod II” course.
2. On 2 January 2008 a delegate of the respondent made an “original determination” under s 333 of the MRC Act rejecting the applicant’s claim for acceptance of liability in respect of “fractured front tooth”.
3. Following a request by the applicant, by letter dated 7 January 2008, for review by the Veterans’ Review Board (“VRB”) of the abovementioned original determination, another delegate of the respondent made a determination on 17 April 2008 amending the description of the injury in the original determination (namely, “fractured front tooth”) to “fractured tooth” but otherwise confirming that determination.
4. On 14 November 2008 the VRB made a “reviewable determination” under Part 4 of the MRC Act affirming the abovementioned original determination (as amended).
5. The applicant subsequently applied to the Tribunal for review of the VRB’s reviewable determination.
The Evidence
6. The evidence before the Tribunal comprised:
·the “T Documents” (T1–T22, pp1–58) lodged with the Tribunal by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·affidavit of Mark Fitzpatrick, dated 28 May 2008, tendered by the applicant (Exhibit A1);
·bundle of VRB documents, filed on 29 January 2010, tendered by the respondent (Exhibit R1);
·documents produced by Dr Cliff Owen in compliance with a summons on 11 February 2010, tendered by the respondent (Exhibit R2); and
·the oral evidence of the applicant.
The applicant’s evidence
7. The applicant confirmed that the contents of his letter of 7 January 2008 (referred to in paragraph 3 above) are true and correct. The contents of that letter are as follows:
“ Further to your letter dated the 2nd January 2008, I wish to appeal the Commission’s decision and request the Veteran’s Review Board (VRB) review my claim.
As reported in my claim, I sustained an injury to my lower left molar tooth and not a fracture to my front tooth as indicated by you.
The injury occurred on the 18th May 2005 when participating in a ‘Battle PT Course’ run during my IET MOD II course at Bindoon between 14-29th May 2005.
When the injury occurred there were other recruits present and if required I can obtain statement/s confirming when the injury occurred.
After the injury, and on the same date, I informed IET staff on a couple of occasions, including WO2 Lang, of the injury and it’s pain and requested medical attention. It wasn’t until after several requests for medical attention that my request was taken seriously.
On or about the 26th May I was driven by WO2 M Lang to Karrakatta Dental Unit arriving there shortly before 0830 hrs so as to make the morning dental parade. Once there a female dental nurse presented me with form/s, I completed those forms and handed them back to the same female dental nurse.
WO2 Lang was present when the aforementioned forms were completed. A short time after completing the paper work I was escorted to the dentist’s surgery room where a middle aged male dentist performed treatment to my injured tooth. The aforementioned female dental nurse assisted.
Should you contact WO2 M Lang, and to help jog his memory of the day, you may wish to mention that on this particular morning, and shortly after arriving at Karrakatta, he accidentally locked his vehicle’s keys inside the vehicle (Army Toyota Landcruiser).
As an Army Reserve Recruit I did what was asked of me on the 18th May 2005 when participating in a ‘Battle PT Course’ run during my IET MOD II course at Bindoon between 14-29th May 2005.
As an Army Reserve Recruit I received an injury on the 18th May 2005 when participating in a ‘Battle PT Course’ run during my IET MOD II course at Bindoon between 14-29th May 2005.
As an Army Reserve Recruit, and as instructed, I reported the injury received to IET staff on the 18th May 2005 shortly after participating in a ‘Battle PT Course’ run during my IET MOD II course at Bindoon between 14-29th May 2005.
As an Army Reserve Recruit, and to the best of my memory, I was not asked to complete any forms, nor was I told to complete nor was I handed any forms for completion regarding the injury received on the 18th May 2005 when participating in a ‘Battle PT Course’ run during my IET MOD II training course at Bindoon between 14-29th May 2005.
As an Army Reserve Recruit, and on or about the 26th May, and because of my injury, I was driven by WO2 M Lang (16 Battalion, RWAR) to the Karrakatta Dental Unit (WA) arriving there shortly before 0830 hrs so as to make the morning dental parade. Once there I was handed forms by a female dental nurse. I completed those forms and handed them back to the same female dental nurse this same morning and before receiving treatment. WO2 Lang’s (sic) was present when this paper work was completed. A short time later I was escorted to the dentist’s surgery room and there a middle aged male dentist performed treatment to my injured tooth. The aforementioned female dental nurse assisted. I was in the dentist’s chair for about 10-15 minutes.
Some time after receiving the aforementioned dental treatment, that treatment failed and I subsequently attended a civilian dentist and received further treatment, to the same tooth, at a cost of $380.00.
The injured tooth was not injured before participating in the aforementioned ‘Battle PT Course’ run during my IET MOD II course at Bindoon between 14-29th May 2005.
This statement is true. The initial army dental treatment has failed resulting in me attending a civilian dentist to receive further treatment to the original injury.
What the aforementioned female dental nurse did with the forms I completed, when at Karrakatta Dental Unit, was completely out of my control. But I was there, I did complete forms and they were handed back to that same female dental nurse that same morning.
As to any other missing forms or procedures not followed, I again am not responsible. I know I received an injury and I reported that injury on several occasions to IET staff resulting in me being driven to the Karrakatta Dental Unit where I received treatment.
I know I received an injury to a tooth, I reported that injury on numerous occasions and did what I was told. I am not responsible for other person/s actions and if those actions have resulted in the misplacement of form/s, or procedures not being followed, again, I am not responsible.” (T15)
8. In his oral evidence the applicant said that he could not remember damaging his tooth during the “Battle PT Course” run. He said that he was too occupied in participating in the course run and in searching for lost items immediately afterwards to know when and how that damage had occurred. He reiterated that there was “nothing wrong” with the tooth before he commenced the course run but that, after completing the course run, he could feel with his tongue that there was a chip “at the top of the tooth on the inside”. He said that the “Battle PT Course” run was about 250 metres long and took about 2 minutes to complete.
The affidavit of Mark Fitzpatrick
9. The applicant tendered in evidence an affidavit of Mark Fitzpatrick, dated 28 May 2008, which states as follows:
“1. Since 2003 I have been a serving member of the Australian Army Reserves….
2.Between May 14th and May 29th 2005 I was in Perth, Western Australia participating in a Modular II Initial Entry Training Course.
3.The Modular II Initial Entry Training Course was conducted at the Bindoon Army Training area, Bindoon.
4.Warrant Officer Lang was one of the Course Training Instructors.
5.Private Kevin Eagle was in my Section and also attending this Modular II Initial Entry Training Course.
6.Whilst participated (sic) in the Modular II Initial Entry Training Course, and as a Section, we were put through a ‘Battle PT Course’.
7.Private Kevin Eagle participated in this ‘Battle PT Course’ at the same time as I did.
8.I remember this part of the training well as shortly after going through the course, and when checking one’s own equipment, one of our Section members reported the misplacement of a ‘Whip Aerial’ and a member of another Section a ‘Night Aiming Device’.
9.Soon after completing the ‘Battle PT Course’, and as a Section, we all went over the course searching for the lost items. They were not found at this stage.
10.Because of the course timetable the search was abandoned for a short time.
11.About one or two hours later and on this same day, during some free time, Private Eagle, myself and our Section Commander, returned to the ‘Battle PT Course’ and commenced a further search of the area.
12.When going over the course I remember Private Eagle telling me he had earlier chipped a tooth when going through the Battle PT Course.
13.In general conversation I remember Private Eagle telling me he could feel a chip in one of his back teeth and that he’d see to getting it looked at later.
14.About one week into the Modular II Initial Entry Training Course I remember Private Eagle telling me he was heading back to Karrakatta to get his injured tooth seen to at the dental unit.
15.Early one morning I remember Private Eagle, in company with Warrant Officer Lang, leave the training area.
16.The day after Private Eagle had left the area, with Warrant Officer Lang, I remember Private Eagle telling me an army dentist had fixed his injured tooth when at Karrakatta.” (Exhibit A1)
10. Mark Fitzpatrick was not required for cross-examination by the respondent and he did not give oral evidence.
The relevant medical evidence
11. The T Documents include the following documents:
·copy of a Military Rehabilitation and Compensation Group Minute, dated 13 September 2007, in response to which Dr C Yin, Departmental Medical Officer, advised that the diagnosis of the applicant’s claimed condition is “fractured tooth S O 2.5” (T7);
·copy of an account rendered by Dr Cliff Owen, Margaret River Dental Services, to the applicant, dated 22 February 2007, in the amount of $380.00 in respect of “metallic restoration” and “cusp capping” services provided to the applicant on that date (T3, p16);
·copy of a Department of Veterans’ Affairs (“DVA”) internal email, dated 3 December 2007, referring to a telephone conversation with Dr Cliff Owen in which it is recorded that Dr Owen stated that:
-the applicant came to see him in February for treatment of a “rear tooth” and he had an “amalgam filling/crown”, the cost of which was $380;
-the applicant had had no previous consultations with him and he had not seen the applicant since (T12).
Additional material
12. The T Documents also include various DVA internal emails, in the period from 17 September 2007 to 4 December 2007, in which it is stated that searches of the applicant’s service medical records have failed to locate any record of the applicant’s having made an incident report or having received dental treatment for a broken tooth in 2005 (T9, T10, T13).
The Relevant Legislation
13. The MRC Act relevantly provides:
“23 Commission’s acceptance of liability for service injuries and diseases
When Commission must accept liability for service injuries and diseases
(1) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a)the person’s injury or disease is a service injury or disease under section 27; and
(b)the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c)a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1:The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non‑warlike service.
Note 2:The standard of proof mentioned in subsection 335(3) applies to the following:
(a) claims that the injury or disease is a service injury or disease that relates to peacetime service;
(b) all claims when determining whether a person sustained a particular injury or contracted a particular disease;
(c) all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
…
27 Main definitions of service injury and service disease
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i)the injury was sustained due to an accident that would not have occurred; or
(ii)the disease would not have been contracted;
but for:
(iii)the person having rendered defence service while a member; or
…
335 Standard of proof for Commission and service chiefs
Standard of proof for claims relating to warlike or non‑warlike service
(1) If a claim in respect of subsection 23(1) or (3) or 24(1) for acceptance of liability for a person’s injury, disease or death relates to warlike or non‑warlike service rendered by the person while a member, the Commission must determine that the injury is a service injury, that the disease is a service disease, or that the death is a service death, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
…
Other determinations to be made to its reasonable satisfaction
(3) Except in making a determination to which subsection (1) applies, a service chief or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.
Note:This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 339.
…
339Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to a claim under section 319 for acceptance of liability under subsection 23(1) or 24(1) for an injury, disease or death that relates to peacetime service.
Note: Subsection 335(3) is relevant to these claims.
…
(3)In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or
(ii) a determination of the Commission under subsection 340(3) of this Act;
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim for acceptance of liability for a person’s injury, disease or death if the Repatriation Medical Authority has neither determined a Statement of Principles under subsection 196B(3) of the Veterans’ Entitlements Act 1986, nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury sustained by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.”
14. In s 5(1) of the MRC Act:
· the word “injury” is defined as follows:
“ injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury”;
· the word “disease” is relevantly defined to mean (amongst other things):
“ any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
15. Finally, s 6 of the MRC Act relevantly provides:
“ 6 Kinds of service to which this Act applies
(1) In this Act:
(a)warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and
(b)non‑warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non‑warlike service for the purposes of this Act; and
(c)peacetime service means any other service with the Defence Force; and
(d)defence service means warlike service, non-warlike service or peacetime service.
…”
Analysis
16. It is common ground that the applicant:
· sustained an “injury” for the purposes of the MRC Act, namely, “fractured tooth” (“the injury”);
· was, at all material times, a member of the Defence Force rendering “defence service” – specifically, “peacetime service” – as defined in s 6(1) of the MRC Act.
17. The matter in dispute is whether the injury sustained by the applicant is a “service injury”, as defined in s 27 of the MRC Act – in particular, whether:
· the injury “resulted from an occurrence that happened while the [applicant] was a member rendering defence service” (s 27(a)); or
· the injury “arose out of, or was attributable to, any defence service rendered by the [applicant] while a member” (s 27(b)); or
· in the Tribunal’s opinion, the injury was sustained “due to an accident that would not have occurred … but for the [applicant] having rendered defence service while a member” (s 27(c)(i) and (iii)).
Pursuant to s 335(3) of the MRC Act, this matter must be decided by the Tribunal “to … its reasonable satisfaction” – that is, on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. As regards the application of s 335(3) of the MRC Act in this case, it is common ground that the Repatriation Medical Authority has neither determined a Statement of Principles under s 196B(3) of the Veterans’ Entitlements Act 1986 (Cth), nor declared that it does not propose to make such a Statement of Principles, in respect of the kind of injury sustained by the applicant, namely, “fractured tooth S O 2.5” (see s 339(4) of the MRC Act).
Is the injury a “service injury” for the purposes of the MRC Act?
18. Each of the three relevant alternative bases on which the injury sustained by the applicant might be determined to be a “service injury” (as defined in s 27 of the MRC Act), set out in paragraph 17 above, involves the requirement of a causal relationship between the defence service rendered by the applicant and his sustaining that injury: see Woodward v Repatriation Commission (2003) 131 FCR 473 at 488; Roncevich v Repatriation Commission (2005) 222 CLR 115 at 126; Military Rehabilitation and Compensation Commission v Roberts (2007) 93 ALD 554 at 565.
19. Although there is some evidence of a temporal relationship between the applicant’s participating in the “Battle PT Course” run in the course of his defence service and his sustaining the injury – see the applicant’s evidence and the affidavit of Mark Fitzpatrick referred to in paragraphs 7–9 above – there is no evidence before the Tribunal regarding a causal relationship between his participating in the “Battle PT Course” run and his sustaining the injury. There is no dental or medical evidence before the Tribunal relating to the cause of the injury, and the applicant himself was at a loss to explain how, or, indeed, precisely when, the injury occurred.
20. Although the Tribunal may be satisfied, on the basis of the applicant’s evidence, that he sustained the injury while participating in the “Battle PT Course” run in the course of his defence service, in the absence of any evidence of a causal relationship between the applicant’s defence service and his sustaining the injury, the Tribunal cannot be reasonably satisfied that that injury is a “service injury” within the meaning of para (a), (b) or (c) of s 27 of the MRC Act. The presence of a temporal relationship between the applicant’s defence service and his sustaining the injury is not of itself sufficient to satisfy para (a), (b) or (c) of s 27 of the MRC Act.
21. It is common ground that paras (d) and (e) of s 27, and ss 29 and 30 (which also relate to the meaning of the phrase “service injury”), of the MRC Act, are not applicable in this case.
22. Accordingly, the Tribunal determines that the injury is not a “service injury” for the purposes of the MRC Act.
Conclusion
23. The Tribunal concludes that the injury is neither a “service injury” nor a “service disease” for the purposes of the MRC Act and, therefore, is not compensable under that Act.
Decision
24. For the above reasons the Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Ms K Hogan, Member
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 30 July 2010
Date of Decision 6 August 2010
Representative of the Applicant Self-represented
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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