Macdonald and Military Rehabilitation and Compensation Commission (Compensation)
[2020] AATA 2643
•3 August 2020
Macdonald and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 2643 (3 August 2020)
Division:VETERANS’ APPEALS DIVISION
File Number:2018/0987
Re:Mikel Macdonald
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:3 August 2020
Place:Brisbane
I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – Military Rehabilitation and Compensation Act 2004 (Cth) – claim for compensation in respect of injury – Achilles tendinopathy - Statement of Principles concerning Achilles tendinopathy and bursitis (Balance of Probabilities) (No. 97 of 2015) – connection between service and injury – reasonable satisfaction – decision under review affirmed
LEGISLATION
Guide to the Assessment of Rates of Veterans’ Pensions (No. 2) 2016 (Instrument 2016 No. R43)
Military Rehabilitation and Compensation Act 2004 (Cth)
Statement of Principles concerning Achilles tendinopathy and bursitis (Balance of Probabilities) (No. 97 of 2015)REASONS FOR DECISION
Deputy President Dr P McDermott RFD
3 August 2020
BACKGROUND
Mr Mikel MacDonald (“the applicant”) has been a serving member of the Australian Army (“the Army”) for over 20 years, having enlisted on 28 January 1997. He remains a fulltime serving member and is currently working as an Aircraft Technician. The applicant is seeking the acceptance of liability by the respondent for his left Achilles tendinopathy condition.
On 13 June 2016, the applicant submitted a claim form for “left ruptured Achilles”, “right knee” and “tinnitus”.[1] In the claim form he stated he was seeking permanent impairment compensation and treatment for his conditions.[2]
[1] Exhibit A, T-Documents, T40.
[2] Exhibit A, T-Documents, T40, at p. 204.
On 15 February 2017, the respondent accepted liability for “tinnitus”, “right knee ACL and MLCL ligament tears”, and “right knee osteochondral deflect”. The respondent denied liability for “left Achilles tendinopathy” and “left Achilles tendon rupture”.[3]
[3] Exhibit A, T-Documents, T45.
On 23 February 2017 the applicant requested a reconsideration of this decision by the Veterans’ Review Board (“VRB”),[4] and later narrowed the appeal to the issue of left Achilles tendinopathy in a submission to the VRB.[5]
[4] Exhibit A, T-Documents, T46.
[5] Exhibit A, T-Documents, T67.
On 24 November 2017 the VRB affirmed the decision under review.[6]
[6] Exhibit A, T-Documents, T75.
On 27 February 2018 the applicant applied to the Tribunal for further review.[7]
[7] Exhibit A, T-Documents, T2.
LEGISLATION
The applicant performed peacetime service for the purposes of paragraph 6(1)(d) of the Military Rehabilitation and Compensation Act 2004 (“the Act”).
Paragraph 23(1)(a) of the Act provides that liability must be accepted for service injuries and diseases where the person’s injury or disease is a “service injury or disease” under section 27 of the Act. Section 27 of the Act provides:
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
(iv)changes in the person's environment consequent upon his or her having rendered defence service while a member;
(d)the injury or disease:
(i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
Note: This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
(e)the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i)to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty.
The main definitions of “service injury” and “service disease” are provided in section 27 of the Act.
The standard of proof applicable to peacetime service is set out in subsection 335(3) of the MRC Act as follows:
(3)Except in making a determination to which subsection (1) applies, the Chief of the Defence Force 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.
Sections 338 and 339 of the Act require regard to be had by the decision-maker to any Statement of Principles (“SoP”) that is in force and which relates to the condition which is the subject of the decision under review.
The relevant SoP in this case is Statement of Principles concerning Achilles tendinopathy and bursitis (Balance of Probabilities) (No. 97 of 2015) (“the SoP”). “Achilles tendinopathy” is defined in clause 7(2)(a) as:
a condition characterised by painful inflammation associated with degeneration in the Achilles tendon, including degenerative tears of the Achilles tendon, or inflammation of the paratendinous tissues.
Clause 9 of the SoP outlines a number of factors, of which at least one must be met in order for it to be determined that, on the balance of probabilities, the claimed condition is connected with the circumstances of the applicant’s defence service. The potentially relevant factors include:
(1)running or jogging an average of at least 60 kilometres per week for the four weeks before the clinical onset of Achilles tendinopathy or bursitis;
(2)undertaking weight bearing exercise involving repeated activity of the ankle joint of the affected leg, at a minimum intensity of five METs, for at least six hours per week for the four weeks before the clinical onset of Achilles tendinopathy or bursitis;
(3)increasing the frequency, duration or intensity of weight bearing activity involving the ankle joint of the affected leg by at least 100 percent, to a minimum intensity of five METs for at least four hours per day, within the seven days before the clinical onset of Achilles tendinopathy or bursitis;
“MET” is defined in the Schedule 1 – Dictionary section of the SoP, to mean:
a unit of measurement of the level of physical exertion. 1 MET = 3.5 ml of oxygen/kg of body weight per minute, or 1.0 kcal/kg of body weight per hour, or resting metabolic rate.
EVIDENCE
Applicant
The applicant provided a statement dated “May 18”.[8] He stated that prior to being diagnosed with Achilles tendinopathy he was undertaking training for six weeks which involved “weight bearing exercises at a minimum intensity of five METs for six hours per week with increasing frequency, distance and intensity of the weight bearing activities”. The applicant stated that there was also a “Run Dodge Jump (RDJ)” obstacle course which involved “practising two feet landing when jumping and traversing the carousel on the RDJ obstacle course”. The applicant also stated that he undertook additional running which involved interval training, and long distance running for up to 4 hours per week.
[8] Exhibit B, statement of the applicant.
The applicant gave evidence at the hearing of this matter. During his evidence-in-chief he stated that, for a couple of weeks prior to his injury on 22 November 2009, he had experienced it being painful to walk on his feet for the first five minutes when he got out of bed. He stated that he didn’t get this checked because “I put it just down to a bit of old age, and… the joints or the ligaments were tight from doing the CFA training”.
The applicant explained that the “CFA” is the Army’s combat fitness assessment which is conducted every 12 months and involves a 15 kilometre pack-march that needs to be completed within two hours and 45 minutes. He explained that there is lead-up training before conducting a CFA, which normally runs for between six to eight weeks. This involved progressing from five to six kilometre marches, up to 15 kilometre marches. The pack load also increased as the training progressed. The training took place every Monday and Friday. The applicant stated that the training sessions were at least an hour long, plus cool-downs and stretches, and extended up to an hour and 40 minutes prior to the actual CFA being conducted.
The applicant stated that he also did other physical activity during the week. He outlined the following:
·On Tuesdays he did a long distance run between five to eight kilometres which lasted between 45 minutes to an hour and 20 minutes;
·On Wednesdays he did a circuit focused on the lower body which lasted around 45 minutes and included a running portion;
·Thursdays were a long distance run, the same as on Tuesday; and
·On Saturdays he went for a long walk up Castle Hill (a steep hill) in Townsville; and
·A couple of nights a week he also took his dog for a walk for around 40 minutes to an hour.
During cross-examination the applicant confirmed that he ruptured his Achilles on 22 November 2009. He confirmed that it is his belief that the increased activity from his training is likely to be what caused the weakness in his Achilles tendon.
The applicant stated that he does not know exactly when the CFA occurred, but it would have been around two weeks prior to the rupture. He stated that the CFA always took place on a Friday, so it would probably have been on 6 November 2009. When it was put to him that there was no evidence of the CFA occurring, the applicant commented that what often happened was that, as it was an operational unit, they could not assess everyone at the same time so it was a staggered event.
The applicant was questioned in detail about his level of activity after the CFA took place. He stated that he still undertook military training (i.e. load-bearing exercises and long-distance runs), but the 15 kilometre walks changed to military site training. He explained that the difference was the distance and time involved; this training was not for as long as the training for the CFA.
The applicant also stated that, after the CFA, his training was similar in terms of the distances run as he was a senior officer, but he did not have the same load bearing as he did during his training for the CFA.
During this extensive questioning it was also established that the applicant travelled a maximum of 56 kilometres a week during this period, so he did not reach the 60 kilometre threshold required by factor 9(1) of the SoP.
During re-examination the applicant was asked to go over his level of physical activity in detail again, and he provided similar responses.
The applicant also provided a document at the hearing which detailed his physical activities during the period of 1 October 2009 to 22 November 2009 (“Schedule of Activity”).[9] The Schedule of Activity indicated that on average each week he spent 7 hours and 50 minutes exercising.
[9] Exhibit D.
In the applicant’s request for reconsideration by the VRB he provided some further detail as to his injury.[10] He explained that when he ruptured his Achilles he was just playing with his young daughters, and it was not intensive exercise. This occurred on a Sunday night. He had PT the next morning and he believes his Achilles would have ruptured during that PT session as it would have been much more intense. He stated that leading up to the rupture he had been involved in “CFA training for the past 12 weeks along with various running sessions… 3 times a week with the alternate 2 days running under my own direction for BFA training”.
[10] Exhibit A, T-Documents, T46.
The applicant stated that when he spoke with orthopaedic surgeon Dr Hazratwala during his surgery, Dr Hazratwala agreed that his military training would have contributed to the rupture, and if it had not ruptured on that Sunday night then would have definitely ruptured the next morning during PT. Dr Hazratwala declined to provide a letter to this effect.
The applicant noted that his rehabilitation specialist Mr Ralph Jones also believed that his military training would have contributed to the rupture.
Medical records
On 22 November 2009 the applicant presented to the emergency department of Townsville Hospital, and it was determined that his Achilles tendon had ruptured.[11] It was noted that the applicant was playing netball at the time, and he felt a sharp pain in his leg and a “snap” at the back of his heel.
[11] Exhibit A, T-Documents, T6.
An ultrasound of the applicant’s left ankle conducted on 24 November 2009 confirmed that there was a complete tear at the mid Achilles tendon.[12] It was also noted, “The tendon is grossly thickened in keeping with underlying tendinopathy”.
[12] Exhibit A, T-Documents, T9.
The applicant’s Achilles tendon was repaired in a surgical procedure on 26 November 2009.[13]
[13] Exhibit A, T-Documents, T4, at p. 27.
A rehabilitation assessment report dated 26 November 2009 detailed that when the applicant sustained his injury, he was advised to wait until Monday to report to his “RAP”, or go to Townsville General Hospital.[14] He went to the emergency department at the hospital and was put in a lower limb cast. He then reported to his RAP on 23 November 2009, and was sent for an ultrasound which subsequently confirmed a complete rupture of the Achilles tendon.
[14] Exhibit A, T-Documents, T15.
A Medical Employment Classification Review (“MECR”) Record dated 24 May 2010 noted the applicant’s “complete rupture of [left] Achilles tendon”, with a date of onset of 22 November 2009.[15] The record also noted that the applicant was being treated with ongoing physiotherapy.
[15] Exhibit A, T-Documents, T12.
A letter from the applicant’s treating orthopaedic surgeon dated 25 May 2010 stated that the applicant was doing well since his repair surgery 6 months earlier, and he was given a note to resume full duties at work.[16] He stated that the applicant had “almost made a full recovery”.
[16] Exhibit A, T-Documents, T24.
The applicant ceased physiotherapy treatment from 27 May 2010 with a cardio program from an exercise therapist.[17]
[17] Exhibit A, T-Documents, T28.
An email from Mr Ralph Jones, exercise therapist, to the applicant dated 28 May 2010 detailed the reconditioning program the applicant was going through at that time.[18] It was noted that the program would take around 12 to 14 weeks and would need to be completed very carefully.
[18] Exhibit A, T-Documents, T26.
The applicant was determined to be medically fit for deployment or seagoing service with limitations on 3 June 2010.[19]
[19] Exhibit A, T-Documents, T27.
A letter from Dr Stephanee Hammerson dated 8 October 2017 confirmed that “it is reasonable to expect that underlying tendinopathy significantly contributed to the acute rupture”.[20]
[20] Exhibit A, T-Documents, T69.
The applicant filled out an Injury or Disease Details sheet dated 6 June 2016 immediately prior to submitting his claim, in which he stated that his left ruptured Achilles was caused by “running/jogging past 4 weeks – weight bearing exercises for CFA training past 12 weeks – various other PT activities”.[21] He also stated that the signs of his injury were “excessive pain L/H ankle area + up LH leg, no control of LH foot, unable to walk”.
[21] Exhibit A, T-Documents, T37.
A Contracted Medical Advisor (“CMA”) from the Department of Veterans’ Affairs (“DVA”) confirmed that the applicant’s diagnosis was “left Achilles tendinopathy” and “left Achilles tendon rupture”.[22]
SUBMISSIONS
[22] Exhibit A, T-Documents, T44.
Applicant submissions
The applicant submits that his Achilles tendinopathy condition meets the criteria outlined in factor 9(2) of the SoP to establish a connection to his service, as he was involved in undertaking weight bearing exercises at a minimum intensity of five METs for six hours per week for four weeks in the lead up to the clinical onset of Achilles tendinopathy.
The applicant notes that “MET” is defined in the Schedule 1 Dictionary of the SoP. The applicant submits that as “weight bearing” is not defined in the SoP, its ordinary meaning is to be adopted. The applicant submits that weight bearing activities are those that force you to work against gravity; e.g. weight training, walking, hiking, jogging, climbing stairs, tennis and dancing. Examples of exercises that are not weight bearing include swimming and bicycling.
The applicant submits that he had no forewarning of the rupture to his Achilles, and he was therefore unaware of any underlying medical complaint. The applicant submits that based on the supporting medical evidence, it is more probable than not that the Achilles tendinopathy condition is related to the service rendered by the applicant. The clinical onset of the condition was on 22 November 2009 (i.e. the date of the rupture), and the onset of this condition was attributable to the applicant undertaking training in the 6 weeks immediately prior to that time for the annual CFA.
The applicant referred to the respondent’s contention that the applicant is unable to establish that his Achilles tendinopathy was caused by his weight bearing and PT exercise during his military service in the weeks immediately prior to clinical onset. The applicant submits that his evidence establishes that it is more likely than not that the physical training he undertook, combined with the CFA lead up training in the four weeks before the clinical onset, was a contributing factor sufficient to meet the SoP requirement of “at least 5 METs for 6 hours per week”.
Respondent submissions
The respondent accepts that the applicant suffers from left Achilles tendinopathy.
The respondent submits that, in order to establish liability for the claimed condition, there must be a connection between the condition and the applicant’s military service that can be established on the balance of probabilities. The respondent submits that the medical evidence supports a conclusion that the condition only came about as a result of the left Achilles tendon rupture. As the rupture occurred in non-service related circumstances (i.e. the applicant’s home), it occurred in non-compensable circumstances, and the claim cannot succeed.
The respondent submits that in the event that the applicant can establish a hypothesis that connects the claimed left Achilles tendinopathy condition with his service, the condition does not meet any of the factors outlined in the SoP.
The respondent understands that the applicant relies on factors 9(1) and 9(2), and possibly 9(3) of the SoP. The respondent submits that an analysis of the contemporaneous evidence demonstrates that the applicant is unable to meet the requirements of these factors.
Factor 9(1)
The respondent submits that the date of clinical onset of the applicant’s injury is 22 November 2009, consistent with available medical evidence which documents that the applicant presented for treatment on 22 November 2009. This date was not disputed by the applicant at the hearing.
For factor 9(1) to apply, the applicant must demonstrate that he was engaged in “running or jogging an average of at least 60 kilometres per week for the four weeks before the clinical onset…” The respondent submits that the evidence fails to support a finding that the applicant fulfils this criterion. The applicant’s Schedule of Activity tendered at the hearing does not amount to the requisite 60 kilometres per week. Further, the applicant’s evidence during cross-examination, which involved the acceptance of ancillary activity not outlined in the Schedule of Activity, was still not able to substantiate the required 60 kilometres.
Factor 9(2)
The respondent submits that, in accordance with the applicant’s evidence, the applicant underwent an annual CFA on or around 8 November 2009, being two weeks prior to the clinical onset of his injury.
Factor 9(2) of the SoP provides for an acceptance of liability where the applicant had been “undertaking weight bearing exercise involving repeated activity of the ankle joint of the affected leg, at a minimum intensity of five METs, for at least six hours per week for the four weeks before the clinical onset of Achilles tendinopathy”.
The respondent submits that the applicant has been unable to establish that he was engaged in weight bearing exercise of the nature outlined above, on the basis that:
·During cross-examination the applicant conceded that the tendered Schedule of Activity was inaccurate;
·The Schedule of Activity schedule notes the applicant as having engaged in activities in preparation for the upcoming CFA between 1 October 2009 to 9 October 2009, however, the evidence before the Tribunal records the applicant as having been on leave between 26 September 2009 to 9 October 2009;[23]
[23] Exhibit A, T-Documents, T43.
·The Schedule of Activity documents the applicant as having engaged in “PT” on 18 November 2009, but the service records document him as attending OHS training on this date;[24] and
[24] Exhibit A, T-Documents, T71.
·The applicant’s evidence regarding the hours of activity he engaged in each day for the four week period has been inconsistently reported by the applicant, and is therefore unreliable. Specifically, during re-examination the applicant gave evidence which suggested that he was undertaking activities after passing his CFA of a duration greater than what he was allegedly undertaking in the lead up to the CFA. The respondent provided a table which reflects the various accounts of activity given by the applicant:
Schedule of Activity
*CFA training
Evidence in Chief
*CFA training
Re-examination
*Typical training week
Monday
90 mins
60 mins
90 – 120 mins
Tuesday
45 mins
45 – 80 mins
45 – 80 mins
Wednesday
30 mins
45 mins
45 mins
Thursday
45 mins
45 – 80 mins
70 mins
Friday
90 mins
60 mins
45 – 90 mins
Saturday
80 mins
45 – 70 mins
45 – 70 mins
Additional – Walking dog
3x a week – 30 mins each
2x a week – 40 mins each
2x a week – 40 mins each
Factor 9(3)
The respondent submits that for factor 9(3) to apply, the applicant must demonstrate that his weight bearing activities were increasing either in frequency, duration or intensity by at least 100% within the seven days before the clinical onset of his injury. The respondent submits that the evidence fails to support a finding in respect of this criterion. During cross-examination, the applicant conceded that his activity decreased, or at best was maintained, following the completion of his CFA on or around 8 November 2009.
Factor 9(3) also requires the applicant to have been engaged in weight bearing activity which met “a minimum intensity of five METs for at least four hours per day, within the seven days before the clinical onset”. The respondent submits that the applicant’s own evidence fails to establish this, specifically:
·The Schedule of Activity only documents the applicant as having engaged in activity for 30 minutes to 2 hours per day between 15 November and 22 November 2009; and
·During the applicant’s re-examination, the further evidence regarding his activities during this time still failed to meet the required four hours of activity per day.
The respondent submits that even if the Tribunal does not agree with its primary submission that the claimed condition did not occur within compensable circumstances, the applicant cannot demonstrate that factors 9(1), 9(2) or 9(3) apply in this case.
CONSIDERATION
It has been contended by the applicant that the “left ruptured Achilles tendinopathy” and “left Achilles rupture” conditions of the applicant were connected with his service. I am reasonably satisfied that the service of the applicant was peacetime service under section 6 of the Act.[25] As this is a case involving peacetime service the application is subject to subsection 339(1) of the Act. I am therefore required to consider whether I am reasonably satisfied that the material before the Tribunal raises a connection between the conditions (which are an injury and a disease) and the applicant’s service in order to satisfy subsection 339(3) of the Act.
[25] Exhibit A, T-Documents, T5.
It is not in dispute that the relevant SoP which was in force at the time of the application which was lodged on 13 June 2016 is the Statement of Principles concerning Achilles tendinopathy and bursitis (Balance of Probabilities) (No. 97 of 2015) and the conditions of the applicant come within the definition of “Achilles tendinopathy” in clause 7(2) of the SoP which includes tears of the Achilles tendon.
One matter that must be determined is the date of clinical onset of the Achilles tendinopathy condition having regard to the various references to the clinical onset of that condition in clause 9 of the SoP. I accept the submission of the applicant, which was not opposed by the respondent, that the clinical onset of the Achilles tendinopathy condition was when it was sustained, and first reported, on 22 November 2009. There is evidence before me that on this date the applicant was injured while playing netball at home. Dr Sumner in her report dated 22 November 2009 records that the applicant then experienced a “snap” at the back of his heel while playing netball.[26] Dr Joseph, in a report dated 23 November 2009, records the applicant having an injury of his left Achilles tendon while playing netball with his children on the evening of 22 November 2009.[27] A specialist referral made by Dr Joseph on 24 November 2009 identified that there was a complete tear of the left mid-Achilles tendon.[28] Dr Joseph in an MECR record dated 25 November 2009 stated that the date of onset of the condition was 22 November 2009.[29] There is no evidence before me that contradicts these reports. I find that the date of clinical onset of the Achilles tendinopathy condition was on a day when the applicant was not on duty and rendering defence service.[30]
[26] Exhibit A, T-Documents, T6.
[27] Exhibit A, T-Documents, T7.
[28] Exhibit A, T-Documents, T69.
[29] Exhibit A, T-Documents, T12.
[30] Military Rehabilitation and Compensation Act 2004 (Cth) s 27.
The applicant, in his Statement of Issues, Facts and Contentions, did not identify a factor in the SoP upon which he relies.[31] At the hearing the applicant stated that he relies upon factor 9(2) of the SoP which refers to where a member has been “undertaking weight bearing exercise involving repeated activity of the ankle joint of the affected leg, at a minimum intensity of five METs, for at least six hours per week for the four weeks before the clinical onset of Achilles tendinopathy or bursitis”.
[31] Applicant’s Statement of Issues, Facts and Contentions dated 24 June 2018.
As I noted earlier, the term MET is defined in the SoP as follows:
MET means a unit of measurement of the level of physical exertion.
1 MET = 3.5 ml of oxygen/kg of body weight per minute, or 1.0 kcal/kg of body weight per hour, or resting metabolic rate.
The applicant at the hearing relied upon the term MET as defined in the GARP[32] which refers to weight-bearing exercise. However, at the hearing I remarked that the term MET in the SoP carries a different definition. That definition under the SoP refers to a unit of measurement of oxygen levels during exercise, calorific consumption per hour or resting metabolic rate. In any event, it was not necessary to make a final determination on this issue because other requirements in the relevant factors in the SoP, which are discussed in these reasons, were not met. It would appear to be difficult for an unassisted applicant to present evidence to the Tribunal on this issue.
[32] Guide to the Assessment of Rates of Veterans’ Pensions (No. 2) 2016 (Instrument 2016 No. R43).
The applicant at the hearing relied upon a Schedule of Activity which was tendered at the hearing.[33] I appreciate that the applicant gave his best efforts to recall his exercise activity that is recorded in the Schedule of Activity. The applicant was quite honest in stating that the Schedule may not be accurate. The Schedule of Activity was not provided to the respondent before the hearing and after the hearing the respondent identified inaccuracies which have not been contested by the applicant. The parties accept that the relevant period that is material for factor 9(2) of the SoP is from 23 October 2009 until 22 November 2009. In particular, the Schedule of Activity documents the applicant having PT exercise on 18 November 2009, while he was engaged on an OHS activity. I cannot be reasonably satisfied that the Schedule of Activity is accurate.
[33] 1 October 2009 to 4 October 2009: 275 minutes of walking/running; 5 October 2009 to 11 October 2009: 470 minutes of walking/running; 12 October 2009 to 18 October 2009: 470 minutes of running; 19 October 2009 to 25 October 2009: 470 minutes of walking/running; 26 October 2009 to 1 November 2009: 470 minutes of walking/running; 2 November 2009 to 8 November 2009: 470 minutes of running; 9 November 2009 to 15 November 2009: 470 minutes of running; 16 November 2009 to 22 November 2009: 470 minutes of walking/running. Further information about distance in kilometres was provided for some, but not all of the days. The number of minutes of activity for each day was provided.
Even if I was to accept that the Schedule of Activity was accurate it does not disclose that the applicant was undertaking weight bearing exercise involving repeated activity of the ankle joint of the affected leg, at a minimum intensity of five METs, for at least six hours per week for the four weeks before the clinical onset of the Achilles tendinopathy condition as required by factor 9(2) of the SoP. If it is assumed that the CFA training was weight bearing exercise in each relevant week the applicant was training for up to 210 minutes per week; this falls short of the required six hours per week. I cannot be reasonably satisfied that the activity required by factor 9(2) of the SoP was undertaken by the applicant during the relevant period.
While I consider that factor 9(2) of the SoP is not satisfied, I have examined whether the evidence before me establishes that other factors are met. Even if I was to accept that the Schedule of Activity was accurate, it does not disclose that the applicant was running or jogging for an average of 60 kilometres per week as required by factor 9(1) of the SoP. In giving evidence before the Tribunal the applicant did not state that his weight bearing activities did increase in either the frequency, duration or intensity by 100% as required by factor 9(3) of the SoP.
The other material before the Tribunal does not raise a connection between the applicant’s service under the Act and the Achilles tendinopathy condition. I have considered the report of Dr Hammerson dated 8 October 2017 in which she opines that the underlying tendinopathy has contributed to the acute rupture.[34] Her opinion may well be correct but her report does not assist the applicant in terms of subsection 339(3) of the Act.
[34] Exhibit A, T-Documents, T74.
CONCLUSION
I acknowledge the service that the applicant has rendered to the Commonwealth. However, I am not reasonably satisfied that the Tribunal raises a connection between the Achilles tendinopathy condition of the applicant and his service. I am bound to apply the SoP which is in force. The SoP which is in force does not uphold the contention that the injury was, on the balance of probabilities, connected with the applicant’s service.
DECISION
I affirm the decision under review.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
…………………………………………..
Associate
Dated: 3 August 2020
Date of Hearing: 5 November 2018 Final Submissions Received: 10 January 2019 Advocate for the Applicant: Ms Sharon Baker, Redcliffe RSL Solicitor for the Respondent: Moray & Agnew Lawyers
0