McAdam and Repatriation Commission (Veterans' entitlements) - [2025] ARTA 2043

McAdam and Repatriation Commission (Veterans' entitlements) [2025] ARTA 2043 (13 October 2025)
Applicant:Debbie-Leigh McAdam
Respondent: Repatriation Commission
Tribunal Number: 2022/9965
2022/9966

Tribunal:Senior Member D Thomae
Place:Brisbane
Date:13 October 2025
Decision:The Tribunal sets aside the decisions under review and substitutes the decision with the decision that:
(a)The applicant suffers from a Lisfranc Fracture and Trochanteric Bursitis (the established conditions).
(b)By reason of the established conditions being defence-caused, the applicant is eligible for a pension by way of compensation under s 70 of the Veterans’ Entitlement Act 1986 (Cth).
(c)The date of effect of this decision is for:
(i)the Lisfranc Fracture, 16 August 2020; and
(ii)Trochanteric Bursitis, 2 August 2021

(d)The application is remitted to the respondent for assessment according to law.

CATCHWORDS
VETERANS’ AFFAIRS – claim for compensation – accepted condition of left ankle instability – whether injury of Lisfranc fracture caused by accepted condition – whether trochanteric bursitis caused consequentially by Lisfranc fracture – conflicting medical evidence – decisions under review set aside
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
Cases
Accident Compensation Commissioner v CE Heath Underwriting of Insurance (Aust) Pty Ltd (1994) 121 ALR 417
Allianz Australia v TIO [2008] NTCA 12
Australian Eagle Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282
Dahoud v Victorian WorkCover Authority [2021] VCC 1903
Dasreef Pty Limited v Hawchar [2011] HCA 21
Forrester v Harris Farm Pty Ltd (1996) 129 FLR 431
Green v Wardleworth (1996) SASC 6207
Container Terminals Australia v Huseyin [2008] NSWCA 320
Pownall & Ors v Conlan Management Pty Ltd as Trustee for the Kalbarri Trust [1995] WASC 117
Repatriation Commission v Money [2009] FCAFC 11
Repatriation Commission v Smith (1987) 15 FCR 327 at 335
Repatriation Commission v Knight [2012] FCAFC 83
Starr v Northern Territory [1998] NTSC 90
Secondary Materials
Statement of Principles concerning Fracture (Balance of Probabilities), Instrument No. 63 of 2024
Statement of Principles concerning Joint Instability (Balance of Probabilities), Instrument No. 58 of 2019
Statement of Principles concerning Trochanteric Bursitis (Balance of Probabilities), Instrument No. 93 of 2023
Statement of Reasons

INTRODUCTION

On 30 November 2022, the applicant, Mrs McAdam, made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the decision by the Veterans’ Review Board (the VRB), dated 21 October 2022, to affirm the determination that Mrs McAdam was not eligible for a pension by way of compensation under s 70 of the Veterans’ Entitlement Act 1986 (Cth) (VEA) for the conditions ‘left Lisfranc fracture’ (2022/9965) and ‘trochanteric pain syndrome’ (2022/9966)[3].
[1] Exhibit R1 at T2.
[2] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 2043
Decision Date: 13 October 2025

CaseChat Overview and Summary

The case of McAdam and the Repatriation Commission involved a claim for compensation for conditions arising from an accepted condition of left ankle instability. The primary issue before the court was whether the injury of a Lisfranc fracture was caused by the accepted condition of ankle instability, and if the trochanteric bursitis was consequentially caused by the Lisfranc fracture. The case was determined in the Administrative Appeals Tribunal, where conflicting medical evidence was presented regarding the causation of these injuries.

The court had to decide whether the Lisfranc fracture and the resulting trochanteric bursitis were directly caused by the accepted condition of left ankle instability. This required a careful analysis of the medical evidence, particularly the reports from orthopaedic surgeon Professor Love and others. The court had to weigh the opinions of various medical experts who provided conflicting views on the causation and the extent to which the injuries were linked to the original condition.

The Administrative Appeals Tribunal found that the left ankle instability experienced by Mrs McAdam was indeed the accepted condition, and that the Lisfranc fracture was a result of this instability. Further, the court concluded that the spinal and trochanteric symptoms were a consequence of the prolonged altered gait due to the left foot disorder. The court accepted Professor Love's opinion that the altered gait significantly contributed to the spinal and trochanteric symptoms, thereby connecting these conditions to the initial injury.

As a result, the decisions under review were set aside, and the claim for compensation was reconsidered in light of the Tribunal's findings. The court's decision effectively affirmed the link between the initial condition of ankle instability and the subsequent injuries, allowing the claimant to potentially receive compensation for the consequential conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mrs McAdam was not cross examined about her evidence of her ankle instability after discharging from the RAAF up to the date of the Incident.Medical EvidenceProfessor Love Professor Bruce Love, consultant orthopaedic surgeon, in report dated 29 November 2023, relevantly states:[27][27] Exhibit R1, pp 24-36.Ms McAdam states that whilst in the air force, she suffered three significant ankle injuries by way of strains which were managed by strapping and which continued to give symptoms in a continuing manner, subsequent to discharge from the air force.On 8 September 2015, while stepping down one step, the left ankle gave way and this caused her to roll her foot, whereby she was subsequently diagnosed a Lisfranc injury. Initial treatment in New South Wales was by way of a closed reduction of the injury and that was followed by operations by Dr Solaiman, at first to insert metal and then to remove metal in 2015.Because of ongoing symptoms, she consulted Dr Goldbloom, who performed a midtarsal fusion on 30 May 2017. The current metal remains in situ in the left foot.Ms McAdam continues to experience left foot pain and walks with an antalgic gait and uses a walking stick in the right hand.Because of ongoing pain, Dr Goldbloom referred her to Dr Monagle, who has subsequently retired but who treated her by way of spinal cord stimulator.This was to control symptoms of back pain, which had been present for an extended period.In addition, she began to experience symptoms in the trochanteric region of the right hip and has had a number of treatments for symptoms in that region by way of radiofrequency denervation and cortisone injections.…She is noted to walk with a walking stick in the right hand. Without the walking stick, she has a very significant antalgic gait.Examination of the left foot reveals multiple scars, with marked dorsal tenderness and pain with rotation of the mid-foot. There is no significant restriction of ankle movement but there is no midtarsal movement.Examination of the lumbar spine reveals a scar to the right side of the lumbar spine, which is the site used for insertion of the spinal cord stimulator with a battery present in the upper right buttock.Lateral to the greater trochanter, local tenderness is present. There is no significant restriction of either hip.…Over a period of approximately 20 years, Ms McAdam experienced recurrent left ankle instability and ultimately suffered a more significant injury to the mid-foot by way of a Lisfranc dislocation in 2015.This has resulted in multiple surgeries. I consider the altered gait due to the left foot disorder to have significantly contributed to spinal symptoms. The symptoms have been those of back pain and pain related to the trochanteric region of the right hip.She has consulted a pain specialist, Dr Monagle, who has introduced her to spinal cord stimulation, the most recent of which was inserted within the last year.I believe the spinal symptoms and the symptoms in the region of the right greater trochanter can be considered a consequence of the prolonged altered gait over the 20-year period since her first injury whilst employed with the Royal Australian Air force.I hold the opinion that the Lisfranc injury would not have occurred if the left ankle had not been rendered unstable as a result of multiple episodes of giving way whilst in the air force.The right hip and buttock symptoms appeared at the time of her undergoing multiple surgeries for the Lisfranc injury to the left foot and it is for that reason I connect the spinal and buttock symptoms to the foot condition. She has had a very long period of abnormal gait.(underlining added by Tribunal)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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