Mackay and Military Rehabilitation and Compensation Commission

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1091

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2003/326; GENERAL ADMINISTRATIVE DIVISION ) A2003/327;
A2003/347

STEVEN MACKAY

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent
DECISION

Tribunal

Ms N Isenberg, Member

Date19 October 2004
PlaceCanberra

Decision

The Administrative Appeals Tribunal affirms the decision under review.

[Sgd] Ms N Isenberg
Member

CATCHWORDS

Workers’ Compensation – assessment of whether the Applicant suffers from a back, bilateral knee and neck injury – definition of injury – assessment of compensation for injuries – consideration of evidence pertaining to each injury – assessment of medical evidence – decisions under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 – ss 4, 14, 16, 19, 24, 27, 28(4)

REASONS FOR DECISION

19 October 2004

Ms N Isenberg, Member

DECISIONS UNDER REVIEW

This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) by the Applicant, Mr Steven Mackay, of the following 3 reviewable decisions:

(i) The reviewable decision of a delegate of Military Compensation Scheme under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) dated 7 February 2002 which affirmed the determination made on 24 April 2001 that disallowed the Applicant’s compensation claim for his claimed back condition under the Act - (File Number: A2003/326);

(ii)A decision of a delegate of Military Compensation Scheme under the Act dated 16 September 2002 which revoked a determination made on 24 April 2001 and, in its place determined that liability for a temporary aggravation of bilateral chondromalacia patellae was accepted, but further determined that the effects of service-related aggravation ceased on and from 19 March 2001 – (File Number: A2003/327);

(iii)The reviewable decision dated 5 August 2003 (T19) which affirmed the determination dated 13 March 2003 (T15) that disallowed the Applicant’s compensation claim for his claimed neck injury under the Act – (File Number: A2003/347).

LEGISLATION

A decision in this matter requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act1988 (“the Act”).
Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of “injury” contained within subsection 4(1) of the Act which states:
“injury” means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

Section 14 of the Act deals with compensation for injuries and as relevant states:
“Compensation for injuries
14.(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.”

ISSUES

The issue before the Tribunal was, in respect of the Applicant’s neck, back and knees he has suffered, as follows:
(i)Does the Applicant suffer from a back “injury” under the Safety, Rehabilitation and Compensation Act 1988 (“the SRCA”) as claimed in his undated compensation claim form received on 2 January 2001, which arises out of or in the course of, or continues to be materially contributed to by, his Commonwealth employment? – (File Number: A2003/326);
(ii)Does the Applicant suffer from a bilateral knee “injury” under the Safety, Rehabilitation and Compensation Act 1988 (“the SRCA”) as claimed in his undated compensation claim form received on 2 January 2001, which arises out of or in the course of, or continues to be materially contributed to by, his Commonwealth employment? – (File Number A2003/327);
(iii)Has the Applicant suffered an “injury” defined in the Safety, Rehabilitation and Compensation Act 1988 (“the SRCA”) as claimed in the compensation claim form dated 3 July 2003 (T4) namely “musculo-ligamentous strain & aggravations of degenerative changes” affecting the “neck”? – (File Number: A2003/347).

BACKGROUND

The Applicant was born on 1 September 1958. He served in the Australian Regular Army (“the ARA”) from 13 July 1977 until he was medically retired in November last year. He rose to the rank of Warrant Officer Class 2 (WO2), serving in the Catering Corps.
On 2 January 2001, the Respondent received a Claim for Rehabilitation and Compensation Form completed by the Applicant in respect of a "back injury” that affected his “lower and upper back” (“the claimed back injury”) (T3). The Applicant said he reported the injury to his supervisor in June 1991 and that he first received medical treatment for that injury in 1991.
On 3 July 2002, the Applicant completed a Claim for Rehabilitation and Compensation Form in respect of a "musculo-ligamentous strain and aggravations of degenerative changes” that affected his “neck” (“the claimed neck injury”) (T4). The Applicant said the injury happened on “various” dates and that he received treatment for the injury on “various” dates.
The Applicant’s undated compensation claim form in respect of a "injury to both knees” that affected his “knee L/R” (“the claimed bilateral knee injury”) (T3) was received by the Respondent on 2 January 2001. The Applicant said he first received medical treatment for that injury in 1980.

THE HEARING

A hearing was held before the Tribunal on 19 and 20 August 2004 at which the Applicant was self represented and the Respondent was represented by Mr C Clarke, of counsel instructed by Dibbs Barker Gosling solicitors.
I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (“the T-documents”), which I took into evidence. All references to T-documents are in relation to the relevant matter unless otherwise stated
Other documents, including the Applicant’s service medical documents were also tendered and are referred to as necessary. Consideration of the Applicant’s service medical documents both at the hearing and in making this decision was hampered by the piecemeal way that they had been extracted from the Applicant’s files. Relevant documents from this source were found, without apparent logic as to location, in the T documents, in the material made available to the Applicant and tendered by him, and the material filed by his former solicitors. I am not confident, as I expressed to the parties at the hearing, that the service medical documents before me and referred to below represent the entirety of his service medical documents that might relate to the claimed conditions. However the Applicant did not submit that the available material was deficient. I have therefore made my decision on the basis of the materiel before me.
The Applicant gave sworn evidence and was cross-examined on behalf of the Respondent. I also asked him questions.
In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
Before turning to the substance of the matter, I observe that the Applicant is clearly disappointed that his Army career has been curtailed by his medical discharge. It is no doubt anomalous to him that he can be considered so unfit that he cannot continue in his career in the Army, and yet the conditions which give rise to his discharge, which he believes arose out of his service, may not be compensable. In these circumstances I wish to make it clear that the issues surrounding medical discharge and the criteria by which the retention of a service member is determined is not a matter for this Tribunal.

BACK

In a statement made in support of his claim (T4), the Applicant gave the following history in relation to his claimed back injury:
“1.In June 1991 whilst on a military course for the Army I was involved in a sports afternoon competition which one of the events was a stretcher race. I was chosen to be the patient and was placed on the stretcher. Four people of different height then carried this stretcher. When the race began and due to the different height of the carriers the stretcher was dropped a number of times, each time my back struck the brace of the stretcher. At the end of the race I got up, collapsed and could not walk. An ambulance was called and I was taken to 1 Field Hospital in Liverpool NSW. There I was hospitalised for 1 week and bed rested for another 7 days.
2.My Medical Officer restricted me from PT for 6 months and since that injury I have experienced a continuos pain to the lower part of my back and across the upper area of my back.
3.In 1994 I was posted to an infantry battalion where I injured my back again when I fell down the outside stairs of the museum. These stairs had been constructed by the local pioneer platoon. I guess to save costs but unknown to me the construction was not to the correct measurements and the wrong materials were used for construction, hence on this rainy day I slipped on the top stair and landed at the bottom. I was taken to the Medical Centre and given bed rest for two weeks.
4. This injury has impaired my social life as well as my future employment. I am unable to perform those tasks that the average male takes for granted i.e., mowing the lawn, cleaning around the yard, servicing the car and playing with my children. I find even driving the car on trips of more than two hours to be painful. These restrictions will certainly impact on my future employment and it is only due to my current rank that I can decide what I can and can’t do in relation to fitness and tasking within my service career.”

At the hearing the Applicant gave an account of the stretcher race accident broadly consistent with the above.
He said that notwithstanding that he was ‘packed in ice’ for 3 days and given 7 days more bed rest, he did not know if had been seen by doctors or if x-rays were taken. He said he was considered only to have bruised his back. He was able to continue with the course which was classroom based.
When he returned to Kapooka after the course he went to the RAP and was then sent for x-rays which he understood showed ‘soft tissue damage’.
From that time onwards there was low back pain. Early on, a couple of times in the first couple of weeks, he had difficulty getting out of bed. He did no PT for 6 months.
He is able to do tasks such as yard work and sometimes his back might hurt. Afterwards he might have to lie down for a few hours.
He has had the physiotherapy.
Throughout his military career he always had to do some physical work, such as moving a table and this would, after the accident, hurt his back.
In 1994, when he fell down the stairs, he was able to get to the RAP unassisted because the RAP was only across the road from the Museum.
Medical evidence
The Applicant’s service medical records include the following entries in relation to his back:
·13 January 1979: Applicant attended RAP complaining of pain in the lower thoracic spine, having been knocked over in the surf. His back was recorded as ‘OK’ 2 days later.
·27 June 1988 (T8): “lumbosacral backache present about 2 weeks – no improvement. Made worse by all movements, prescribed Feldene and physio”.
·6 June 1988 (T9): “Review – back better. Still having trouble with drills. Hasn’t been able to have all physio treatments, prescribed Indocid”.
·17 August 1988 (T10): Referred to physiotherapist for low back pain for 1 month following twisting movement of back.
·20 June 1991 (T11): Fell off stretcher at 2:15pm, injured lower back. Pre-history of neck pain. CAT scan – no abnormality detected. Constant pain localised in lumbar region. Possible diagnosis noted as soft tissue injury. Certified unfit for duty until 21 June 1991.
·26 November 1991 (T12): Reference to stretcher injury. No PT for 6 weeks and he was referred for the physiotherapy.
·3 December 1991 (T15): Dr David Nicholls, orthopaedic surgeon said the June 1991 stretcher fall “caused minor back pain aggravated by physical activities and I think it is due to minor soft tissue trauma only and should settle with time”.
·20 January 1992: Medical Examination Board noted “mild low back pain when does BFT situps over 30. No decrease ROM no x-ray abnormalities. Specialist opinion suggests ST injury persisting after injury”. The Applicant’s back was noted as “normal” and he was certified “FE” (Fit Everywhere) with no diagnosed disability.
·10 August 1993 (T18, T19): History of back injury in 1991. Complaint of back ache after 20-30 sit ups. Seen by orthopaedic surgeon in 1991, diagnosis of soft tissue injury. Referred for assessment of sit up technique. Failed situps component of BFA.
·22 September 1994: Dr Stephen Fine, orthopaedic surgeon, obtained a history that the Applicant experienced “low lumbar [symptoms] – occurs with heavy lifting which he no longer does. No radiation into lower limbs. Started ’91 – after being dropped twice in a stretcher race. March ’94 – aggravated when slipped and fell down +/- 8 steps. Does not trouble him unless lifting heavy objects”. Dr Fine said clinically that the Applicant had ‘mechanical low back pain (mild)”. The Applicant was referred for x-rays.
·3 November 1994: reviewed by Dr Fine. Condition described as ‘mechanical low back pain’.
·9 November 1994 (T20): X-rays taken of lumbosacral spine showed no bony or soft tissue abnormality.
·8 May 1995: Medical Examination Board notes that back is ‘normal’ but records that his back “no limiting except after running continuous for weeks – then aches a bit.”
·27 June 1998: Applicant attended RAP complaining of lumbosacral backache - present for about 2 weeks – no improvement. He was prescribed analgesic and sent for the physiotherapy. He was ordered not to undertake running or PT for a week.
·6 July 1998: The Applicant’s back was reviewed and was better although he was still having trouble with drill. He was to avoid drill and PT for a month.
·17 August 1998: Clinical notes on referral to the physiotherapy record ”LBP for one month following twisting movement of back”.
·Medical Examination Board records of 29 August 2000 and 15 May 2001 make no reference to any back symptoms or pain. Applicant’s back was noted as “normal” with no diagnosed back disability.
·13 December 2001 Comprehensive Preventive Health examination refers to episodic low back pain. Able to keep up with PT.
·3 April 2003: Medical Employment Classification Review record makes no reference to any back symptoms or pain.
·17 July 2003: discharge Health statement Dr Bilton recorded nothing in relation to the Applicant’s back, notwithstanding that the Applicant had noted it as a condition which he suffered.
·8 August 2003 Comprehensive Preventative Heath examination records no problems with the Applicant’s back.
The Applicant relied on a report of Dr Suzette Blight, rehabilitation physician dated 16 November 2001 (T31). Dr Blight obtained a history that the Applicant had been required to perform manual activities since 1985 which aggravated his neck and back. The Applicant told her of the 1991 stretcher race injury and a 1994 fall down stairs. He told her that extended driving aggravated his neck and back pain. “He said that his neck pain was constant but the level of pain varied. He said that his neck was more of a problem than his back”.
On examination, Dr Blight said that “on forward flexion of his thoraco-lumbar spine his hands reached to his lower calves. Extension was 10˚ only. Lateral flexion to both sides was minimally restricted. Lateral rotation to the left was two-thirds of the normal range and lateral rotation to the right was normal”.
Dr Blight said the Applicant “told me that in 1986 [sic] he had a fall and had a further musculo-ligamentous strain to his neck as well as to his upper back. He has had repetitive musculo-ligamentous strain with further aggravation of the degenerative changes in his cervical and thoracic spine in the course of his military employment”.
Dr Blight considered the Applicant’s condition to be permanent and that it had been so since 1992. She considered the Applicant’s military employment aggravated and contributed to the degenerative changes in his back and that the aggravation and contribution to his condition was permanent. She assessed the Applicant on the basis of a whole person impairment as suffering a 10% impairment of the back under Table 9.6.
In her telephone evidence Dr Blight said that as Mr Mackay had no pre-existing back condition that she was aware of, his degenerative changes had developed, in her view, as a consequence of his military employment. She accepted though that degenerative changes can be brought about by no particular trauma.
In a report dated 19 March 2001 (T24), Dr David Elder, orthopaedic surgeon, obtained a history from the Applicant “that in 1998 [sic] … he was being carried on a stretcher during a stretcher race and was dropped several times onto his lower back”. The Applicant said he continued to experience pain at a level of 6 out of 10 and has never received referral to physiotherapy or any treatment other than non-steroidal anti-inflammatory medication. The Applicant said he was not taking any analgesic medication and received no treatment to his back. The Applicant stated that “I’ve never had any treatment”. On examination, Dr Elder said the Applicant walked with a normal posture and gait. “Inspection of the back and spine revealed no abnormality at all in the lower back and there were no areas of tenderness noted. He was able to forward flex his back to 90°. Extension, lateral flexion and rotation were all full and pain free”.
Dr Elder said “there was no abnormality detected demonstrated today in Mr Mackay’s lower back. He gave a history of intermittent mechanical back pain, which I do not accept as being caused by a relatively minor traumatic experience 15 years ago”. Dr Elder said the Applicant’s Commonwealth employment was “probably not” the principal cause of the condition and that he “probably” would have contracted the condition despite that Commonwealth employment. He said that the Applicant’s employment contributed “0-9%” to the condition.
In a report dated 13 November 2002 Mr J G Mander, orthopaedic surgeon, obtained a history of a June 1991 stretcher race fall and 1994/95 fall downstairs whilst collecting flags at a museum. The Applicant said that prolonged sitting brings on backache, as could mowing the lawn or cleaning the car. He told the doctor he also experiences problems if he bends or lifts. Walking appears to ease the pain. On examination, Mr Mander said the Applicant’s “lower spine had a normal contour. There was no local tenderness. There was slight discomfort on percussion of his spine in the dorsi lumbar region but there was a full range of movement”. Mr Mander said there was a material contribution from the June 1991 stretcher incident to the Applicant's condition. He said, however, that “I consider that material contribution appears to have ceased, although he is still experiencing some discomfort carrying out his duties”. Mr Mander said the Applicant “is not incapacitated for work as described. I consider that a full recovery is likely to occur. I do not consider, however that Mr Mackay has suffered a permanent impairment”.

In a supplementary report dated 16 December 2002, Mr Mander referred to the 1994/95 fall downstairs whilst collecting flags at a museum and said “it would be reasonable to state that he would have recovered from that particular fall”.
In a report dated 30 January 2004, Dr Paul Miniter, orthopaedic surgeon, said “there is no cause or link between his military employment and his claimed [back] condition”.
In his telephone evidence Dr Miniter said that the x-rays of the Applicant’s back were within normal limits for his age. The complaint of ‘non-specific back pain’ is very common in the community. To match the degree of complaint he would have had to experience a very significant injury and there was no evidence of an injury of that order. He regarded the conservative treatment of the Applicant as evidence that the injury was not of the magnitude described by the Applicant. In cross-examination he said he would have expected, for a significant injury, one where there was intense swelling and a failure to recover after 4 weeks. He would have expected the Applicant to be incapacitated for 3-4 months and that his legs, bladder and bowel would have shown complications. He would have expected the Applicant to be in bed for 6 weeks. As to Dr Blight’s diagnosis of musculo ligamentous strain he did not think that was a diagnosis at all, or one with any ‘clinical backing’.
The Respondent contended that the Applicant does not suffer from a back “injury” under the SRCA which arises out of or in the course of, or continues to be materially contributed to by, his Commonwealth employment. Counsel invited my attention to the Applicant’s service medical documents which would suggest that after the accident on 20 June 1991 the Applicant did not attend the RAP again complaining of his back condition until some 5 months later, on 26 November 1991. Further, after 20 January 1992 he did not complain of his back condition again until August 1993, notwithstanding that he had attended the RAP with other medical issues.
The medical evidence suggested that the symptoms currently experienced relate to the underlying and inherent nature of the Applicant’s degenerative condition and not to any work related aggravations. I am satisfied that while the Applicant may have suffered repetitive musculo skeletal strain with further aggravation of degenerative changes in his spine the effects of those strains and aggravations have ceased.

NECK

In a statement dated 4 June 2002 (T7, pg 30), the Applicant referred to incidents occurring in June 1991 (fall off a stretcher during a stretcher race) and 1994 (fall down museum stairs) and said that these resulted in him experiencing back symptoms.
In a statement dated 3 July 2002 (T7, pg28), he described suffering “a laceration to the forehead and severe whiplash” as a result of a motor vehicle accident that occurred in 1981 “whilst travelling home from work”. He said he was taken to Royal Brisbane Hospital and received stitches to the forehead and a neck brace. He said he was “later informed that the car I collided into was a police vehicle”.
The Applicant did not report any neck symptoms resulting from these 2 incidents.
It was the Applicant’s contention that the condition arose out of:
·“Motor Vehicle Accident occurring on the his journey from work to home in 1981”
·“Injury at work when ordered to shift furniture at School of Portsea in 1987”
·Injury at work when he fell of [sic] a stretcher during a stretcher race in 1991”
·Injury at work when he fell down the Military Museum stairs in 1994”.
At the hearing the Applicant spoke of getting a spasm in his leg during a BFA walk which caused him to collapse. He was taken to Albury base hospital and found to have damage at C5-6-7. He had ‘pain all the time’ for about 2-3 weeks. He went back to the doctor who ‘stretched’ his neck.
He also said he had experienced ‘massive tension headaches’ when his job was computer based and his head and neck would ‘lock up’. As a result, workplace ergonomic advice was provided.
He said that Dr Bilton, the Area Medical Officer became concerned about his deployability and sent a letter to the Chief Medical Officer. This set in train his discharge on medical grounds. He complained that he had never been deployed during his whole military service and it was unreasonable that he should be medically discharged on the grounds that he was non-deployable.
Medical evidence
The Applicant’s service medical records include the following entries in relation to the Applicant’s neck:
·Medical examination records of August 1980 (T7, pg 59), 21 April 1983 (T7, pg 58), 19 September 1984 (T7, pg 57) and 9 July 1987 (T7, pg 56) make no reference to any cervical spine pain or symptoms. Applicant’s neck noted as “normal”.
·30 January 1988 (T7, pg 54): CT scan of cervical spine said “no bone, joint or soft tissue abnormality is detected. No disc prolapses are identified. The exit foramina are of good calibre, and there are no signs of spinal canal stenosis”.
·20 June 1991 (T7, pg 53): Medical Attendance and Treatment report records Applicant falling off stretcher at 2:25pm that day. “Injured lower back. P/H 1988 neck pain Rx CAT scan NAD. Constant pain felt localised in lumbar region. ROM restricted”. A probable diagnosis of a soft tissue injury was made. There is no reference was made to any cervical spine pain or symptoms.
·26 November 1991 (T7, pg 52): Medical Attendance and Treatment report refers to 20 June 1991 stretcher race and notes that Applicant now complained of “pain mid thoracic and higher. Constant pain across shoulders with exercise”. On examination there was pain with neck elevation, extension and lateral tilt. The Applicant was referred to orthopaedic surgeon and for cervical views.
·26 November 1991 (T7, pg 51): X-ray report of cervical spine showed “mild narrowing of the C5/6 disc space while the remaining disc heights are normal. Minimal spondylitic changes. The osseous canal is within normal limits. There is only minimal osteophytic encroachment upon the neural exit foramens. The alignment is normal. Functional views show a reasonable range of movement and no evidence of instability”.
·20 January 1992 (T7, pg 49): Medical examination record makes no reference to any cervical spine pain or symptoms. Applicant’s neck noted as “normal”.
·4 May (? - illegible) 1994 (T7, pg 48): Outpatient Clinical Record notes “whilst walking down stairs fell over (slipped) and injured left side of back. O/E LOM slight pain, needs to report injury”. There is no reference to any cervical spine pain or symptoms.
·8 May 1995 (T7, pg 47): Medical Examination Board record notes “slipped down steps in museum – laid up 1-2 weeks, no limiting except after running continuous for weeks – then aches a bit”. There is no reference to any cervical spine pain or symptoms. Applicant’s neck noted as “normal”.
·10 June 1996 (T7, pg 46): Outpatient Clinical record notes “patient's neck swelling around 7^th cervical vertebra, feels abnormal, now has limited movement of head + neck”.
·31 July 1996 (T7, pg 45): Medical Examination Board record notes “PHx neck troubles. x2 month gets stiff neck lasting a few days. Minor ¯ ROM L+R flexn, L+R rotn”. Diagnosed disabilities were listed as “1. Asymptomatic asthma 2. LBP – rarely 3. Ant knee pain 4. Minor ¯ fields of red colour detection”.
·25 November 1997 (T7, pg 44): Medical examination record makes no reference to any cervical spine pain or symptoms. Applicant’s neck noted as “normal”.
·Medical examination records of 5 July 1999 (T7, pg43) 29 August 2000 (T7. Pg38) and 15 May 2001 (T7. Pg37) make no reference to any cervical spine pain or symptoms. Applicant’s neck noted as “normal”.
·27 November 2001: In a comprehensive Preventive Health examination the Applicant complained of muscular pain between shoulder blades at back of neck.
·24 June 2002: referred to Dr Ring, neurologist. It was observed that “NSAIDS not useful symptomatically but great benefit from physio cervical traction. Recurrence of sub occipital aching after PT running. Left lateral cervical rotation to 40degrees.” Extension and flexion were normal.
·9 October 2002: Attended RAP. Notes record “persistent suboccipital aching symmetrical in spite of NSAIDS and the physiotherapy sessions x 2 since April 02 – most days. No paraesthesis, sensory loss and no radiation to vortex or frontal region.” His arms and were unaffected. History given of ‘whiplash’ in 1982 when his forehead was lacerated and a headrace was worn by way of treatment. It was observed that his work was computer based and his posture was queried. An x-ray was ordered.
·4 April 2003: on review of x-rays degenerative changes in the Applicant’s cervical spine were observed. ‘Adventure training’ was likely to cause strain and so the Applicant said he avoided those activities.
·1 May 2003: Dr Bilton wrote that he was avoiding activity which would place strain on the neck but noted the Applicant could fulfil BFA. He considered him deployable.
In a report dated 12 April 2002 (T6), Dr Steven Ring, neurologist said that the Applicant gave a history of having developed a severe occipital headache suddenly during a fitness test 2 weeks beforehand. The headache persisted for about a week and then settled. It flared again after the Applicant changed the tyre on his car. He continued to take regular analgesic although the quantity had reduced form 8 to 2 per day. He said “neurologic examination today was essentially normal. Specifically there was no to neck stiffness or retinal haemorrhages. There was some tenderness over the upper cervical spine and limitation of cervical range of movement in lateral flexion. Most likely WO Mackay suffers from a benign exertional headache syndrome possibly musculo-ligamentous in aetiology” [My underlining]. Short-period avoidance of physiotherapy, use of anti-inflammatories and gentle cervical physiotherapy was prescribed.
In a minute dated 12 March 2003, Dr Guy Hibbins, DVA Senior Medical Officer confirmed that “there is no mention on the medical file of any neck injury in 1981. … Medical Board examinations in 1980, 1983, 1984 and 1987 do not mention any neck problems. … Medical Board examinations in 1997, 1999. 2000 and 2001 showed no evidence of any neck problems. … [W[hile it is possible that Mr Mackay suffered a whiplash injury in 1981, it is not probable on balance, in the absence of evidence to the contrary, that he has any ongoing neck problems related to this”.
In her report dated 16 November 2001 (T5), Dr Suzette Blight, rehabilitation physician obtained a history that the Applicant “injured his neck in 1981 in Queensland whilst coming home from work. He said that he had a whiplash injury to his neck and had stitches on his forehead. He said that he was sent to Royal Brisbane Hospital and stitched up and put in a neck brace and sent home the next day. … He said that two to three months later he was not experiencing any pain. He said that in 1986 he had a fall to work in Portsea in the dining room and he was unable to get up off the ground lying on his back. He said that he was sent for a CT scan in case he had hurt his neck. He said that his neck had remained painful and restricted in movement. He said that he did not do any physical activity that aggravated his neck injury”. The Applicant complained of continuing neck pain.
Dr Blight said “in my opinion he sustained a musculo-ligamentous strain to his neck in 1981 in a motor vehicle accident coming home from work. He told me that in 1986 he had a fall and had a further musculo-ligamentous strain to his neck as well as to his upper back. He has had repetitive musculo-ligamentous strains with further aggravation of the degenerative changes in his cervical and thoracic spine in the course of his military employment”. She assessed the Applicant as suffering a 5^+% permanent impairment pursuant to Table 9.6.
In a report dated 30 January 2004 Dr Paul Miniter, orthopaedic surgeon said “I do not believe that there is any direct cause or link between his military employment and his claimed [neck] condition”.
At the hearing Mr Miniter was critical of Dr Blight’s report in that he regarded her diagnosis of ‘musculo ligamentous strain’ to be a ‘nebulous concept and has no specific diagnostical or clinical backing’. He considered that the injuries sustained in the stretcher incident as likely to have caused short term aggravation. He said in cross-examination by Mr Mackay:
“If you had a serious back injury, I would expect you to be incapacitated, perhaps be unable to return to work for three or four months, possibly have leg pain, and/or bladder or bowel disturbances indicative of a disc prolapse, or a significant fracture that might keep you in bed for six weeks. Other than that, I think, you know, the injuries you describe to me are more consistent with something that a lot of people would experience in everyday life fairly commonly.”
The Respondent contended that the Applicant does not suffer from a neck “injury” under the SRCA as claimed in his compensation claim form dated 3 July 2002, which arises out of or in the course of, or continues to be materially contributed to by, his Commonwealth employment.
I am satisfied, particularly on the basis of Dr Hibbins’ evidence, that it is unlikely that the Applicant’s neck condition dates back to his injury of 1981. That the Applicant’s Medical Examination Boards of 1980, 1983, 1984, 1987, 1999, 2000 and 2001 made no mention of the Applicant having trouble with his neck is to me, a significant factor in coming to my decision. The Applicant gave evidence that the examinations were cursory and that most of the form was completed by an orderly and not by the doctor who certified the form. Whether this is the case or not, it is incumbent upon the Applicant to bring to attention medical issues which he suffers. It is inconsistent to suggest that physical limitations need to be downplayed for the purpose of the Medical Board, when one has a history of seeking treatment for a condition from Army doctors. The certifying doctor could observe that treatment if he were to peruse the Applicant’s medical. There would be little point, I would suggest, in anything less than complete candour when attending the Medical Officer for the purpose of a Medical Board. The conclusion I must therefore draw is that, at least of the times of those examinations the Applicant’s neck was not troubling him, or was not troubling him to the extent that he thought it worthwhile mentioning.
On the basis of the available evidence I am satisfied that the Applicant suffered a neck injury during the course of his Commonwealth employment in 1991. That injury was treated in the latter part of 1991. Notwithstanding that the x-ray report in 1991 showed changes to his cervical spine, by January 1992 it had apparently resolved and it was ‘normal’.
The medical reports in relation to the 1994 accident show no complaints of neck trauma or injury.
The neck was apparently aggravated in 1996 and treated over the ensuing months. No further problem with the Applicant’s neck were recorded until the end of 2001.
I do not find the opinion of Dr Blight to be persuasive as she appears to have based her views on the Applicant’s account of the history of the claimed condition rather than the material in relation to history which she specifically recorded as having before her. As to the views of Dr Ring, his diagnosis of ‘benign exertional headache syndrome’ stands alone in the medical evidence, and on balance, I prefer the evidence of Drs Elder, Hibbins, Miniter and Mander.
On the basis of the medical evidence I am satisfied that the effects of both the initial 1991 injury and 1996 aggravation have resolved such that the Applicant no longer suffers from the claimed neck injury.

KNEES

In a statement attached to his claim (T3, p 16), the Applicant gave the following history in relation to his claimed bilateral knee injury:
“In 1980 I was on exercise in Malaysia when the strapping on my pack broke releasing the pack and company radio from my back. This came forward and hit my left knee. I was given medical attention and the knee was strapped. Since then I have had numerous problems with my knees caused by continuous walking up and down stairs, lifting and carrying heavy loads, and continuous running on bitumen roads. Unknown to me when I had the accident I then started to favour my right knee when running or walking, in 1997 I was informed by my physiotherapist that I had been running incorrectly.”
At the hearing the Applicant gave an account of the injury in Malaysia which was broadly consistent with that described in his statement. He said he was given medical aid at the campsite and then removed to a non-tactical area where he remained for a few days until he got movement back into his knee. He kept the knee strapped and the swelling went down after 2-3 days.
He said he had had no other knee problems until 1990, when he attended the RAP at Kapooka when, he said, both knees were sore during and after the 2.5 kms runs he was obliged to undertake every second day. He said he was given physiotherapy on about ½ a dozen occasions. He used a stocking on his knee.
He said his knees gradually got worse. During a cross country run he ‘broke down’ and was unable to continue. A physiotherapist in Perth advised him to strap his knee as he had been ’running incorrectly’ and he was prescribed orthotics. He was unable to participate in PT for 6-8 weeks.
In 1999 he was posted to Canberra. He failed his BFA because he was unable to run more than 100 metres of the 2.4km course. Surgery was discussed but he was posted to Brisbane before that could occur.
The Applicant said an arthroscopy and lateral release and chondroplasty of the patella was performed on both knees in 2000.
The surgery was arranged in Brisbane in mid 2000. In total he was on crutches for 3 months. He started walking after about 3-4 months.
12 months after the operation he was able to complete the BFA 5km walk in the required time.
Currently he described his knee as preventing him running, although he can now walk. Occasionally the knee ‘locks up’ and he has pain on descending stairs. Occasionally he has a sharp pain in the right kneecap.
Medical evidence
The Applicant’s service medical records include the following entries:
·11 July 1990: Medical Examination Board notes no complaints of knee pain. Applicant’s Lower Extremities were noted as “normal” and he was certified “FE” (Fit Everywhere) with no diagnosed disabilities.
·12 December 1991: some clicking in the right knee on walking, and stiffness with prolonged sitting. On examination there was no effusion, good range of movement and the ligaments were normal. Referred for the physiotherapy and given analgesics for 2 weeks. He was fit for restricted duties.
·20 January 1992: Medical Examination Board notes “mild crepitus R knee. No pain or PF grind though, does not swell after exercise/intensive running. Occasional sharp pains climbing/descending stairs. Dx: mild CMP”. Certified “FE” (Fit Everywhere) with no diagnosed disabilities.
·11 August 1994: referred for review by orthopaedic surgeon, Dr Fine.
·22 September 1994: Dr Fine recorded the history in relation to the accident in Malaysia. The Applicant complained of stiffness after prolonged or regular running. Was able to flex and extend fully but reported feeling ‘as thought the joint was out of position’. The symptoms settled after a few days and the knee became asymptomatic. The doctor found no swelling, no locking. No grating but a click which was not painful. He prescribed a small amount of the physiotherapy, one a month for 12 months.
·9 November 1994: x-rays showed bipartite patella.
·8 May 1995: Medical Examination Board makes no reference to knee symptoms or pain. Applicant’s Lower Extremities were noted as “normal” and he was certified “FE” (Fit Everywhere) with no diagnosed disabilities.
·31 July 1996: Medical Examination Board notes “used to have trouble with patella pain R>L. In recent years though the member does very little PT – he may do a 5km run once/fortnight without trouble. If he runs daily he gets pain”. Certified “FE” (Fit Everywhere) with diagnosed disabilities, including “ant knee pain”.
·16 April 1997: attended RAP complaining of sore knees left greater than right. Sharp pain across kneecap after PT. Recovers over the weekend. On examination there was no swelling or effusions. The patella was tender; there was full range of movement. A diagnosis was made of patella tendonitis. He was given analgesics, heat treatment and physiotherapy.
·December 1997: Medical Examination Board records that ‘did have mild occurrence of pain after heavy PT session (L) knee. Settled with rest …” Lower extremities were recorded as normal. Classified ‘Class 1’.
·11 March 1998: attended RAP with month old left knee problem, after playing indoor soccer. Referred to the physiotherapist who wrote: “The main problem appears to be that he returned to PT too suddenly so hopefully the knee will settle with modified PT”.
·5 July 1999: Medical Examination Board notes “c/o bilateral knee pain retropatellar after excess running but passes al fitness tests – clinically no effusion, full movements, alight crepitus”. Applicant’s Lower Extremities were noted as “normal” and he was certified “Class I” with no diagnosed disabilities.
·15 November 1999: Applicant attended RAP complaining of right knee problems. Referred to specialist.
·17 November 1999: xrays of both knees were normal, although “the right patella was ‘slightly high in position and both patellae might be predisposed to lateral subluxation in full extension”.
·14 August 2000 (T4, pg20): Left and right knee arthroscopy performed by Dr S Fairbairn, surgeon. Grade 3 chondromalacia patella noted. Patella chondroplasty performed. He was hospitalised for 2 days with 28 days convalescence.
·29 August 2000: Medical Examination Board note lower extremities as abnormal but noted that the post-operative recovery was good. The Applicant was permitted to undertake ‘PT at own pace’. [The Applicant’s former solicitors submitted to the review officer that this report showed that the Applicant’s condition was ‘worse’ on this date. In fact the entry reads ‘wound can you do a tick? ‘]
·15 May 2001: the Applicant was able to pass his BFA, although running was still ’an issue’.
·3 April 2003: Medical Employment Classification Review record notes “clinical chondromalacia patellae (bilateral) – no radiological abnormality demonstrated”.
·17 July 2003: In the Discharge Health Statement Dr Bilton wrote “No great disability from knee problems”.
·8 August 2003: In the comprehensive Preventive Health Examination the senior medical officer Dr Pensonby wrote: “Slight patello-femoral crepitus both knees. Gets some discomfort walking down stairs- other wise no significant disability”.

The Applicant again relied on the report of Dr Suzette Blight, rehabilitation physician dated 16 November 2001 (T11). Dr Blight obtained a history that in 1978/80 the Applicant injured his left knee when a radio struck him. “He said that he gradually mobilised and did not have any more symptoms until about 1991 when his knee became painful and it was increasingly difficulty [sic] for him to do his BFAs and CFAs. … He said that he gradually had more difficulty in passing the tests because of his left knee injury. He said that if he did any running he would have increased pain in the front of his knee”.
Dr Blight also obtained a history that in 1987/88 he developed pain in his right knee as he “tended to favour his left leg and took more weight through his right leg and knee as a consequence and he developed pain in the front of his kneecap. … He said that in 1991 his right knee locked up on him climbing up some stairs”. The Applicant said “that it took some time for him to recover [from bilateral arthroscopies in June and August 2000] and he was only now building up muscle strength doing an exercise program but had not done it for the last month. He said that he still had pain in the front of both knees”.
On examination, Dr Blight said that the Applicant “had a varus deformity of both knees. He was tender over the patellar tendon on the right. He had mild muscle wasting in both vastus medialis oblique muscles in both upper legs with quadriceps weakness. He was able to squat to half the normal range only. He was able to kneel and get up with minimal difficulty but reported pain in both knees on kneeling. He had patello-femoral crepitus in both knees and his left knee clicked on flexion and extension”.
Dr Blight said that Applicant “sustained a musculo-ligamentous strain to both knees with the development of a bilateral chondromalacia patellae. … In my opinion his military employment has aggravated and contributed to the chondromalacia patellae in both knees to a material degree”.
Dr Blight gave evidence by telephone. She said the chondromalacia patellae comes about by limping subsequent to injury, and that the Applicant’s condition had been so bad that it had required surgery. She agreed in cross-examination that the injury would need to have been ‘of some consequence’.
In a report dated 19 March 2001 (T7), Dr David Elder, orthopaedic surgeon, obtained a history from the Applicant as to the 1980 pack left knee injury. “he said his knee was strapped and rested and he eventually recovered from that injury. However, in 1999 he was informed by a physiotherapist that his manner of walking had changed, therefore causing an injury to his right knee. In July 2000, Mr Mackay underwent an arthroscopy and lateral release to both knees. ... However, he advised me that following surgery, the condition in both knees was much worse”. The Applicant described bilateral knee pain at a level of 8 out of 10, worse when walking down stairs and said he was unable to run. The Applicant said he was not taking any analgesic medication.
On examination, Dr Elder said the Applicant’s “lower limbs revealed no evidence of muscle wasting. There were no effusions detected in his knees. He was able to hop, carry out a lunge test, squat to 90˚ and walk in a squatted position. Straight leg raise was demonstrated to 90˚ bilaterally and sitting straight leg raise also to 90˚. There was a full range of movement in his hips and knees, with no evidence of tenderness around his knees and no evidence of crepitus in the patellofemoral joint. He displayed no discomfort at all on the patellar apprehension test or during my patellar tap. He demonstrated normal muscle power and normal muscle definition. Sensation was normal, as were the deep tendon reflexes. I was able to percuss the tibial tuberosity with no degree of discomfort at all and similarly there were no other areas of bony discomfort. He was able to walk on his heels and toes and perform a squat”. Dr Elder confirmed that “at arthroscopy [in 2000], a diagnosis of chondromalacia patellae was made. This is a degenerative congenital condition which is not caused by employment”. Dr Elder said the Applicant’s Commonwealth employment was “definitely not” the principal cause of the condition and that he “definitely” would have contracted the condition despite that Commonwealth employment. He said that the Applicant’s employment contributed “0-9%” to the condition. Dr Elder said “chondromalacia patellae is an in-built condition and therefore is not employment related”.
In a report dated 8 May 2003, Mr Ian Jones, orthopaedic surgeon obtained a history that the Applicant “first injured his right knee [sic] in 1979” after a pack strap broke. In 1989 or 1990 he was walking down some stairs at work when his left knee [sic] “locked up”. … Since 1990 the left and right knee pain has persisted and slowly deteriorated. … At some time during 2000 he underwent arthroscopies of both knees and “lateral releases”. This failed to alleviate his symptoms”.
On examination, Mr Jones said the Applicant “presented walking unaided. He was noted to stand with his weight equally distributed on left and right sides. The attitude of his knees was normal and the patient was noted to be able to squat unassisted. Examination of both left and right knees revealed good quadriceps muscle bulk. Assessment of his left and right patellae failed to identify any maltracking and neither patella could be dislocated or subluxed. Some mild patello-femoral crepitus was noted on extension of both knee joints and the patello-femoral compression test was mildly position [sic]. The range of movement in both left and right knees was from zero to 135 degreases which was considered to be normal. The cruciate and collateral ligaments were clinically normal. Stressing the menisci failed to elicit any signs suggestive of pathology and there was no swelling in either knee joint. There was no evidence of patella tendon tenderness. Pain x-rays of the patient’s left and right knees including skyline patella views dated 31/03/03 were normal”.
Dr Jones said the Applicant “has symptoms and signs of bilateral chondromalacia of the patellae. … I do not believe that there is any particular incident at work which has been the cause of his left or right knee conditions. I believe that this patient suffers from a predisposition to chondromalacia patellae which has been transiently aggravated by some of the activities he describes during the course of his employment. I believe that the effects of this aggravation have resolved. I agree with the conclusion of Dr David Elder that his man’s left and right knee conditions are unrelated to his employment. I disagree with the opinion of Dr Suzette Blight as to the cause of his left and right knee conditions. I am unable to identify any particular injury or insult to either his left or right knees which I could reasonably believe has been the instigating or a significant aggravating factor to his left or right knee conditions”.
In a report dated 30 January 2004, Dr Paul Miniter, orthopaedic surgeon, to whom the Applicant had been referred by his former solicitors, wrote that the Applicant ”demonstrates features of bilateral patellofemoral disease. This is common in the general population and there is no specific association with workplace injuries.” He expressed some reservations about the level of present symptomatology compared to the description of the incident said to give rise to the condition.
In his telephone evidence, Dr Miniter said the condition was essentially a degenerative one and that this view was supported by the fact that both the Applicant’s knees area affected. The x-rays were within normal limits to Mr Mackay’s age.
As to Dr Blight’s diagnosis of ‘musculo-ligamentous strain to both knees’, the doctor said that this was not an orthopaedic term, and did not know what Dr Blight could mean. In cross-examination he said:
“If you had a knee injury that had a substantial injury you would usually follow that by a period of intense swelling, usually with failure to recover and the need for surgical treatment, usually between two and four weeks later. There’s an obvious asymmetrical nature so that you’d be able to tell one knee is different from the other.”
He concluded that “there is no cause or link between his [bilateral knee] complaints and his military employment”.
The Applicant was very critical of Dr Miniter, mainly to the effect that his examination was cursory and that he had not read the papers forwarded to him in anticipation of the consultation. The doctor said that he had treated many veterans, he himself had worked at Kapooka, his brother in law is in the SAS, and was very familiar with the requirements of BFAs and CFAs. He also said he was very experienced in evaluating knees and did not need to examine the Applicant in any more detail than he had done in order to form his view. He said his opinion would have been no different had he seen him for longer, or if he had read the papers in advance.
Having reviewed all of the evidence I find that the Applicant suffered temporary service-related aggravations of his bilateral chondromalacia patellae and that the effects of the service-related aggravations ceased as of 19 March 2001, and that liability under the Act also ceased on and from that date.

DECISION

The Administrative Appeals Tribunal affirms the decisions under review.

I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, MEMBER:

Signed: Neil Glaser
Associate

Date of Hearing                   19 & 20 August 2004
Date of Decision                   19 October 2004
Representative for the Applicant               Self-Represented
Counsel for the Respondent                    Mr C Clarke
Solicitor for the Respondent                      Dibbs Barker Gosling

[2004] AATA 1091

19 October 2004

Key Legal Topics

Areas of Law

Workers’ Compensation

Legal Concepts

Assessment of Injury

Medical Evidence

Compensation for Injuries