McDougall and Comcare - [2001] AATA 836

DECISION AND REASONS FOR DECISION [2001] AATA 836

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/285

GENERAL ADMINISTRATIVE DIVISION          )
           Re      DONALD ALAN McDOUGALL
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date5 October 2001
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

SIGNED
I R WAY
MEMBER
CATCHWORDS
MILITARY COMPENSATION – injury arising out of or in the course of employment – whether applicant suffered an injury

Safety Rehabilitation and Compensation Act 1988 ss 4, 124
Commonwealth Employees' Compensation Act 1930 s 16

REASONS FOR DECISION

5 October 2001 Mr I R Way, Member

This is an application by Donald Alan McDougall (the applicant) for review of a decision of Comcare (the respondent) dated 13 November 1999 which determined that the Commonwealth was not liable to pay compensation to the applicant for pain in both feet on the basis that the injury to the applicant's feet had not arisen out of the course of his military employment.
The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1 –T31) and further documents accepted into evidence as follows.
For the applicant:

Exhibit A1 Report of Dr P Davies dated 27.10.00
Exhibit A2 Report of Dr P Davies dated 1.6.01 (including radiology report dated 5.8.99)

For the respondent:

Exhibit R1 Report of Dr B Kuhnemann dated 8.5.01
Exhibit R2 Report of Dr B Kuhnemann dated 5.6.01
Exhibit R3 Medical Examination Record dated 20.5.68
Exhibit R4 Medical Examination Record dated 16.3.72
Exhibit R5 Medical Examination Record dated 5.9.74
Exhibit R6 Report of Dr Berryman dated 20.1.76
Exhibit R7 Motor Vehicle Accident Report dated 9.8.65
Exhibit R8 Medical notes relating to surgery in 1958

The applicant was self-represented and gave oral evidence as did Dr Davies and Dr Kuhnemann.
Issues and Legislative Framework
The primary decision made by the respondent on 9 June 1999 disallowed the applicant's claim dated 25 August 1998 for "pain in feet (flat feet)" arising from an operation on his left foot in 1958. The delegate, pursuant to the transitional provisions of Section 124 of the Safety Rehabilitation and Compensation Act 1988 (the Act) determined that in view of the operation on the applicant's foot in 1958, the Commonwealth Employees' Compensation Act 1930 (the 1930 Act) should be applied.
Following extensive unsuccessful attempts to discover sufficient relevant records, the delegate, pursuant to Section 16 of the 1930 Act, considered that the position of the Department of Defence had been prejudiced by the late lodgement of the claim and disallowed the claim.
On reconsideration, further medical evidence had been obtained and the delegate, while canvassing the question of prejudice as a result of the lateness of the applicant's claim, nevertheless went on to consider the merits of the applicant's case and determined that liability was not accepted for the applicant's left foot on the basis that the injury had not arisen out of or in the course of the applicant's military employment.
There was no dispute between the parties that the matter should proceed on the merits of the case and that the principal issue before the Tribunal was whether the pain in the applicant's feet arose out of or in the course of his Army service.
Applicant's evidence
The applicant was born on 21 September 1936 and served in the Australian Army from April 1954 until his discharge on 30 April 1976.
The applicant told the Tribunal he was discharged medically unfit and that his flat feet were one of the reasons for his discharge. He attributed his foot condition to an accident in the early 1950s while attending an Army cricketer's bar-b-que. He said he had cut his left foot on a broken beer bottle and that his foot had been stitched up wrongly, subsequently leading to lumps on the bottom of his foot which were detected at an annual medical examination. It was the applicant's evidence that he was told by the doctor that he had to have an operation and that, despite his protestations that the operation would flatten his foot and ruin his football career as well as his Army career, he was ordered to have the operation.
He said that the operation caused a lot of trouble with his foot, that he had some temporary pain at the time in his left foot, but he continued to fully undertake his Army duties after a short period of convalescence. He said that the pain in the bottom of both feet became worse in 1998 and that he now has to wear special shoes.
The applicant also contended that marching, running, physical training and training exercises during his Army service contributed to the problem in both of his feet.
In cross-examination, the applicant informed the Tribunal that he had suffered damage to both feet in an accident in the 1950s, involving a military vehicle. He said both his feet had been pushed up against the front floor-board of the vehicle and that his nose had also been damaged. On further questioning, the applicant said that after the accident he returned to his unit in the vehicle and later went on foot to the RAP for attention. He said he subsequently had received treatment for his nose damage but had received no treatment for the "trauma" to his feet. The applicant contended that the motor vehicle accident contributed to the osteoarthritis he now suffered in both feet. With respect to the recall of detail, the applicant told the Tribunal that he now was often confused.
Also in cross-examination, the applicant told the Tribunal that he had represented the Army in inter-service rugby union competitions, to the best of his recall in 1962 and 1963 and also in badminton in 1963.
The Tribunal notes that Counsel for the respondent referred the applicant to a number of Army medical records showing that his feet and gait were normal, with nil significant disabilities in his feet, in the years 1969, 1972 and 1974 and that he was medically classified "FE" (fit everywhere) (Exhibits R3, R4, R5); that Dr Berryman had recorded in 1976 that the applicant "walks with a normal gait, ankle jerks demonstrated equally and normally, plantar downgrade on all sides" (Exhibit R6) and that the applicant "had been in a car accident in August 1965 with no personal injury except shock" (Exhibit R7).
The Tribunal is mindful that on discharge the applicant's Medical Board Examination Record lists gait as "normal" and feet as "abnormal" with a note "pes planus mobile arch". At this examination there was no diagnosis of a disability in the feet.
Medical evidence
The Tribunal notes that the medical records relating to the operation on the applicant's left foot on 26 February 1958 (Exhibit R8) show a diagnosis of fibroma and excision of a nodule of fat fibrous tissue and tendon from fascia of left foot; that on examination some eight weeks later he had considerable thickening where fascia was excised; also pes planus; that suitable foot wear should be worn, with hydrotherapy, heat and flat foot exercises for three weeks; and that a Medical Board in August 1958 medically classified the applicant as Class 1 with no disablement and a recommendation he be allowed to wear suitable footwear.
Dr Davies, General Practitioner, provided a number of relevant written reports (T15, T26, T27, T28, Exhibits A1 and A2) and gave evidence to the Tribunal orally.
In December 1998, Dr Davies opined that the operation on the applicant's left foot caused the pes planus in his left foot, that this was service-related and could have led to the applicant having a flat right foot. He also noted that the applicant had Diabetes Mellitus Type II, obesity, degenerative spine disease with nerve root involvement and generalised atheriosclerotic disease, all of which now substantially affect his feet. The Tribunal notes that the applicant is of the opinion that his diabetes affects the top of his feet whereas the pain he is complaining of is in the bottom of his feet. In his written report of 1 June 2001 (Exhibit A2), Dr Davies, based on a bone scan on 5 August 1999, said the radiologist suggested the pain in the applicant's feet was most likely due to osteoarthritis. Dr Davies noted the applicant's contention that running, jumping and marching in the Army could have caused his osteoarthritis. Dr Davies stated that the applicant injured both feet in a motor vehicle accident which may have been a causative event of premature osteoarthritis.
In his oral evidence, Dr Davies told the Tribunal that he would expect a serious trauma, such as a fractured bone in the applicant's foot from the applicant's motor vehicle accident, to contribute to his osteoarthritis. The Tribunal notes that the radiologist report on 5 August 1999 (attached to Exhibit A2) states there is no indication of a hairline stress-type fracture in the applicant's feet. In cross-examination, Dr Davies accepted that he would defer to the opinion of the specialist Orthopaedic Surgeon, Dr Kuhnemann, that the applicant suffered mobile pes planus and this was a naturally occurring condition which did not impede his Army career. However, he said he disagreed with Dr Kuhnemann in that he, Dr Davies, thought the osteoarthritis in the applicant's feet had been contributed to by the applicant's military service.
Dr Kuhnemann provided a number of written reports (T30, Exhibit R1, Exhibit R2) and gave oral evidence to the Tribunal.
Dr Kuhnemann, on examination of the applicant on 4 August 1999, found the applicant demonstrated a mobile pes planus with some slight restriction of mobility of his mid-foot, absence pedal pulses and some mid-foot osteoarthritis. Dr Kuhnemann arranged for the applicant to have a bone scan of his feet and on review of the scan Dr Kuhnemann stated that the scan demonstrated some slight uptake in his mid-foot consistent with his osteoarthritis. Dr Kuhnemann went on to say that the surgery on the applicant's foot in 1958 was performed for plantar fibromatosis which was unrelated to his years in the service.
In his report of 8 May 2001 (Exhibit R1), Dr Kuhnemann stated that the applicant does have bilateral pes planus which is not related to the surgery performed on his foot in 1958. He opined that the pain the applicant is getting in his feet is from mid-tarsal osteoarthritis, totally unrelated to any surgery to his foot. Dr Kuhnemann further expressed the opinion (Exhibit R2) that the applicant's mid-foot osteoarthritis is degenerative in nature following a normal osteoarthritic process, there being no history of any injury to his mid-foot.
In his oral evidence, Dr Kuhnemann told the Tribunal that mobile pes planus was common in children, did not stop normal activity and that the surgery on the applicant's foot was unrelated to pes planus. He went on to say that the thickening of fascia ligaments on the sole of the foot was a relatively common benign condition and, in the applicant's case, was not caused by his Army service and not related to mobile pes planus. Dr Kuhnemann also said that he had not taken any history of the applicant suffering injury to his feet in a motor vehicle accident. However, to be significant in the applicant's case, any such accident would have to involve both feet and any injury would have to be traumatic such as a fracture.
Submissions
The applicant contended that the operation on his left foot flattened his foot and that the osteoarthritis in his feet resulted from injuries to his feet sustained in the motor vehicle accident in the 1950s. He attributed both the operation and the injuries in the motor vehicle accident to his Army service. He said he had joined the Army at 17 and had given his youth and life to the Army and that the pain he was now suffering was caused by this service. He said he deserved some monetary value for the pain and suffering he experienced in the bottom of both feet and that he should also receive special footwear at Commonwealth expense.
The respondent submitted that the applicant's mobile pes planus was a naturally occurring condition and not attributable to the operation on his foot in 1958 and that after the operation the applicant's condition did not impede his Army career or activities. With respect to the motor vehicle accident, it was submitted that the only record of a motor vehicle accident was in mid-1965 where the applicant did not suffer any physical damage, that there was no record of any significant damage to his feet resulting from a motor vehicle accident. It was submitted that the pain the applicant suffered in his feet resulted from naturally occurring degenerative osteoarthritis, along with other medical conditions which had nothing to do with the Army.
Consideration
The Tribunal is mindful that the primary decision of a delegate of the respondent disallowed the applicant's claim for compensation for pain in both feet on the basis that the position of the Department of Defence had been prejudiced by the late lodgement of the claim. On reconsideration, a delegate of the respondent affirmed the primary decision on the basis that the injury had not arisen out of or in the course of the applicant's military employment.
As already noted, it was common ground between the parties, and the Tribunal accepts that this matter should proceed on the merits of the case, the decision under review being the respondent's disallowance of the applicant's claim for pain in the feet on the basis that the applicant's condition did not arise out of or in the course of his military service.
It is common ground that the applicant suffers pain in both feet, and the Tribunal so finds. Likewise, there is no disagreement, and the Tribunal finds accordingly, that the applicant suffers from osteoarthritis in both feet.
Dealing first with the osteoarthritis in both of the applicant's feet. The applicant's contention is that his military service contributed to this condition because of injury to both his feet in an accident in the mid-1950s involving an Army vehicle. No record of the accident, either by way of medical report, accident report or accident investigation was put before the Tribunal. On the applicant's own evidence he received no medical treatment for injury to his feet in this accident, the vehicle involved in the accident was capable of being driven back to his unit after the accident and he was able to walk to the RAP to seek attention for an alleged injury to his nose. Both the doctors who gave evidence to the Tribunal have stated that the applicant would need to suffer a significant trauma to both feet, such as a fracture, for the accident to be causative of osteoarthritis in later life. The Tribunal notes that the bone scan of the applicant's feet in August 1999 showed no indication of a hairline stress-type fracture. After consideration of all of the material before it, and for the reasons given above, the Tribunal is satisfied that the applicant did not suffer a traumatic injury to his feet in a motor vehicle accident in the 1950s and that Dr Kuhnemann's opinion that the applicant's mid-foot osteoarthritis is the result of a normal degenerative process is correct.
Turning then to the effects, if any, of the operation on the applicant's foot in 1958 to excise plantar fibromatitis. The Tribunal was impressed by Dr Kuhnemann's thorough review of the medical records relating to the surgery carried out on the applicant's foot. The Tribunal also notes that Dr Davies had no difficulty in accepting that greater weight should be accorded to Dr Kuhnemann's opinion with respect to this matter because of Dr Kuhnemann's expertise, as a specialist Orthopaedic Surgeon. After consideration of all of the medical evidence before it, the Tribunal prefers the evidence of Dr Kuhnemann and finds that the applicant suffers from bilateral pes planus which is unrelated to the surgery on his left foot either from the laceration from the beer bottle or from the excision of the plantar fibromatitis.
Finally, the question remains as to whether service-related jumping, running and marching has led to the pain in the applicant's feet. The applicant suggested this and Dr Davies has noted the applicant's suggestion without comment. The Tribunal is mindful that the applicant actively pursued vigorous sporting activities in the Army as well as other physical activities arising from Army training. However, as the medical records show he suffered no problems with his feet or gait during service and apart from the mobile pes planus referred to above, there were no problems with his feet during service. On balance, the Tribunal does not accept the applicant's contention that running, jumping and marching during his service career had led to the osteoarthritis or pain in his feet which he has experienced since 1998.
It follows from the above reasons that the Tribunal is satisfied that the pain the applicant is suffering in both feet has not arisen out of or in the course of his Army service.
The Tribunal affirms the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of I R Way
Signed:         .....................................................................................
           R. Hayes, Associate
Date of Hearing  17 September 2001
Date of Decision  5 October 2001
For the Applicant  In person
Counsel for the Respondent    Mr C Clark
Solicitor for the Respondent    Australian Government Solicitor