McKenzie-Smith and Military Rehabilitation and Compensation Commission (Compensation)

McKenzie-Smith and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 1644 (4 July 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2018/5382
Re:Gregory McKenzie-Smith
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:04 July 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..............................[SGD]................................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – military compensation – whether non-service related injury was aggravated out of or in the course of the Applicant’s defence service – decision under review affirmed
LEGISLATION
Compensation (Commonwealth Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
REASONS FOR DECISION
Member D Mitchell
4 July 2019
INTRODUCTION

Mr Gregory McKenzie-Smith (the Applicant) fractured his left ankle in September 1971 while undertaking his civilian job in the Northern Territory. He is claiming compensation for the aggravation of that injury during the course of his former military employment under section 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (the DRC Act).
The Applicant was engaged in National Service under the Citizen Military Forces (CMF) in a part-time capacity commencing on 4 March 1969 until he was medically discharged on 15 February 1972 having attained the rank of Corporal.[1]
[1] Exhibit 1, T Documents, T11, pages 54-55, Discharge Order.
During the Applicant’s National Service, he was also working in civilian employment, initially with the South Australian Police Force and later as a rigger on various oil rigs in the Northern Territory.[2]
[2] Exhibit 1, T Documents, T6, page 48, Applicant’s Application to Enlist in the Citizen Military Forces; T12, page 56, Statement of Service.
THE CLAIM
The Applicant made a claim for liability against the Respondent dated 13 October 2017 in respect of his left ankle condition.[3] On 16 May 2018, the Respondent rejected the Applicant’s claim for this condition on the basis that the injury did not arise out of the course of his defence service.[4]
[3] Exhibit 1, T Documents, T17, pages 65-74, Claim for Disability Pension (left ankle).
[4] Exhibit 1, T Documents, T19, pages 77-81, Determination – denying liability to pay compensation under the DRC Act for the Applicant’s claimed left ankle condition.
The Applicant provided further information on 2 June[5] and 13 July 2018,[6] and also requested reconsideration of the Determination.[7] The Respondent invited the Applicant to provide any additional evidence he considered relevant to his claim.[8] The Applicant provided a letter and extract from his service medical records.[9]
[5] Exhibit 1, T Documents, T20, pages 82-84, Applicant’s statement (with accompanying annexure – “Musculoskeletal Lower Limb Injury Risk in Army Populations”).
[6] Exhibit 1, T Documents, T22, pages 87-90, Applicant’s statement with accompanying annexures).
[7] Exhibit 1, T Documents, T21, pages 85-86, Applicant’s Application for Review requesting a reconsideration of the Determination dated 16 May 2018.
[8] Exhibit 1, T Documents, T24, pages 92-93, Letter to the Applicant from the Respondent.
[9] Exhibit 1, T Documents, T25, pages 94-96, Letter to the Respondent from the Applicant (with accompanying annexures).
On 7 September 2018, the Respondent affirmed the Determination of 16 May 2018 denying liability to pay compensation under the DRC Act for the Applicant’s claimed left ankle condition.[10]
[10] Exhibit 1, T Documents, T26, pages 97-101, Reviewable Decision – affirming the Determination dated 16 May 2018 denying liability to pay compensation under the DRC Act for the Applicant’s claimed left ankle condition.
On 18 September 2018, the Applicant filed an application for review of this decision with the Tribunal.[11]
[11] Exhibit 1, T Documents, T2, pages 6-21, Application for Review of Decision.
THE LAW
As the service period in question relates to January 1972, the legislative tests relevant to establishing a causal relationship between the Applicant’s left ankle injury and/or aggravation injury and the Applicant’s former military service are set out under the transitional provision of the DRC Act. The casual relationship is necessary to support an acceptance of liability to pay compensation. This means the Applicant must satisfy the legislative requirements of the Compensation (Commonwealth Employees) Act 1971 (Cth) (the 1971 Act).
Section 124 of the DRC Act provides:
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
Section 27 of the 1971 Act provides:
(1.)If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
Section 29 of the 1971 Act provides:
(1.)Where—
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
ISSUES
The issue before the Tribunal is primarily whether the Applicant suffered a left ankle injury and/or aggravation injury during the course of his former military employment. If so, what is the date of the injury with respect to the injury and/or aggravation injury to the Applicant’s left ankle?
EVIDENCE
Army Personnel File
The Applicant’s service personnel records include his service pay history which shows CMF attendances on various occasions which include:[12]
27 Aug – 12 Sept 71 – 17 Days
5 Jan 72 Camp – 17 Days
[12] Exhibit 1, T Documents, T5, page 47, Applicant’s service personnel records (extract);T12, page 56, Statement of Service.
The Applicant attended the Camp at the Smithfield Army Barracks (Smithfield Camp) on 5 January 1972. In a Request for Investigation/Treatment form dated 12 January 1972 Dr Shepherd noted that the Applicant had a weak and painful left ankle following a fracture to his left ankle occurring reportedly three months earlier. Dr Shepherd requested x-rays of the Applicant’s left and right ankles.[13] The findings of the x-ray investigations dated 12 January 1972 set out:[14]
There is evidence of a past fracture of the anterior tibial malleolus on the left with the fragments well united but with a small step in the tibial articular surface anteriorly. There are no other signs of past bone or joint trauma and a normal ankle mortice is maintained with no instability of the talus within the mortice.
The right ankle joint appears normal.
In retrospect there was probably also some damage to the tip of the medial malleolus of the left ankle with satisfactory fragment union now.
[13] Exhibit 1, T Documents, T4 page 42, Applicant’s service medical records (extract); T8 page 51, Request for investigation/treatment (report both ankles – Dr Shepherd); T16, pages 60-64, Letter to the Applicant from the Department of Defence (with accompanying annexures) – Noting that the document appears a number of times in the T Documents with varying quality.
[14] Exhibit 1, T Documents, T4, page 42, Applicant’s service medical records (extract); T8, page 51, Request for investigation/treatment (report both ankles – Dr Shepherd); T16, page 61, Letter to the Applicant from the Department of Defence (with accompanying annexures) – Noting that the document appears a number of times in the T Documents with varying quality.
In entries dated 16 and 19 January 1972 respectively, contained in the Applicant’s service medical records, Dr Shepherd provides:[15]
#L … 4/12 ago. Has had a lot of trouble with ankle since had 5x Pops because of previous trauma and discomfort etc – see xrays – … is he fit to continue NS?
… early Nov 71 injured left ankle as a private and not Service episode.
It is still thickened with some effusion and xrays 12 Jan 72 show widening of mortice and some early O.A.: not adequate as an infanteer.
Class: L7
[15] Exhibit 1, T Documents, T9, page 52, Medial report of Dr Shepherd, T16, page 64, Letter to the Applicant from the Department of Defence (with accompanying annexures) – Noting that the document appears a number of times in the T Documents with varying quality.
Dr Shepherd further confirms his opinion in relation to the Applicant’s ankle injury in a Discharge History Questionnaire[16] and Medical Examination Record both dated 20 January 1972.[17]
[16] Exhibit 1, T Documents, T4, page 44, Applicant’s service medical records (extract).
[17] Exhibit 1, T Documents, T4, page 45, Applicant’s service medical records (extract); and T16, page 65, Letter to the Applicant from the Department of Defence (with accompanying annexures).
In a Final Medical Board Report dated 7 February 1972, the following information is provided:[18]
[18] Exhibit 1, T Documents, T10, page 53, Final Medical Board Report.
1. Brief summary of medical history – L fractured ankle in Northern Territory 4/12 ago. Had 5x POP changes and now has an arthritic unstable ankle which swells and becomes painful on exercise
2. Diagnosis of Disabilities Discovered – unstable L ankles and osteoarthritis – 10% incapacity
3. Were any of these Disabilities listed in section 2:
a. due to an occurrence during service? No
b. attributable to service? No
c. aggravated by conditions of service? No
4. Were any disabilities present before Service? If yes give details. Yes – disability present before camp, not due to any service.
…
9. Confirming authority’s comments: Disability not attributable to CMF Service.
The Applicant was discharged, medically unfit on 15 February 1972.[19]
[19] Exhibit 1, T Documents, T11, pages 54-55, Discharge Order; T12, page 56, Statement of Service; T13, page 57, Letter to the Applicant from the Department of Labour and National Service.
Further Medical Evidence
The section of the Applicant’s claim form to be completed by a medical practitioner was completed by his General Practitioner, Dr Glen Mulhall. Dr Mulhall provided a diagnosis of left ankle pain.[20]
[20] Exhibit 1, T Documents, T17, pages 67-68, Claim for Disability Pension (left ankle).
On 11 January 2018, a contracted medical advisor opined that the Applicant was suffering from a left ankle fracture (healed) with the date of onset being November 1971 (confirmed on imaging 12/1/72). In relation to any causal relationship between the Applicant’s service and his left ankle condition, the contracted medical advisor provided:[21]
Regarding SRCA contribution, I note the orthopaedic consult states ankle injury ‘private and not service episode’.
[21] Exhibit 1, T Documents, T18, pages 75-76, Medical opinion of Contracted Medical Advisor.
Throughout the Tribunal application process, the Applicant’s medical records were summonsed.[22] These records provided details of further injuries, surgery and complications the Applicant had experienced in relation to his left ankle starting with a further fracture in 1997 following a horse riding accident.[23]
[22] Exhibit 8, Summons Records.
[23] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 5-6, paragraphs 24-33.
Applicant
In his claim for disability pension form dated 13 October 2017, the Applicant outlined:[24]
[24] Exhibit 1, T Documents, T17, pages 65-74, Claim for Disability Pension (left ankle).
·his disability as ‘left ankle’
·his signs and symptoms being ‘swollen extremely painful when walking very limited flexion have been advised a joint fusion may help alleviate the pain
·he believes his service caused, contributed to, or aggravated his disability stating:
I did not want to become a drill instructor and asked my C.O to be replaced. He advised a replacement would be found – but did not eventuate – this aggravated my disability leading to a discharge as being unfit.
·he first became aware of the signs and symptoms of the disability, or aggravation of the disability on 19 January 1972
·his left ankle has become almost unbearable since aggravating in the army but have never mentioned it before
·he was a hotel manager from 1988 to 2000
·he ceased work on 9 November 2000 due to age and leg injury
·he was fired at the time of attending a CMF 2 week camp working on an off-shore oil rig and replaced cause initial ankle break
·doing job as drill instructor at Woodside Army Camp caused existing injury to worsen to state of not being able to walk properly or do any jobs requiring mobility could only perform desk bound type of work
In a letter to the Respondent dated 2 June 2018, the Applicant provided:[25]
I was discharged on 25th Feb. 1972 at 43 RSAR.
This being on recommendation after seeing an army Doctor and specialist.
My ankle was previously broken at my civilian job in N.T. Nov. 1971.
I applied to join the 9^th Task Force No21 recruit course as a storeman or a clerk.
I was instructed by the RSM at Smithfield camp to attend N.C.0 Cadre course from 5-23 Jan 1972.
After arriving at Woodside Army barracks I was told by the Commanding Officer that I would be a Drill instructor and in-charge off one of the companies. I told him that I did not want to do such and refused — mainly because of my weak ankle. His response was that there was no one else but if I did the job initially he would find a replacement -which was not forthcoming.
Being a drill instructor and leading the men on forced marches with full provisions and helping men by carrying their weapons, as well as my own caused further and irreversible damage to my ankle.
I have just been made aware that this problem was quite common. I have attached part of a study done by Dr John Codrington and others on this very same injury.
[25] Exhibit 1, T Documents, T20, pages 82-84, Applicant’s statement (with accompanying annexure – “Musculoskeletal Lower Limb Injury Risk in Army Populations”).
In the Applicant’s application for internal review lodged on 13 July 2018, he set out the reason he was requesting a review as being:[26]
Not claiming for left ankle fracture but aggravation of a physical injury (namely aggravation of left ankle fracture)
My military duties contributed to the aggravation of my existing left ankle fracture that resulted in my eventually being unfit for duty.
I informed my commanding officer that my injury was being aggravated by the tasks I was asked to perform but he disregarded my welfare and in doing so caused my existing injury to debilitate to a point that I was no longer fit for military duties.
I asked to see an Army appointed specialist in 1972 and he informed me that my existing injury in 1971 that had healed well had now become aggravated to the point of medical discharge.
[26] Exhibit 1, T Documents, T21, pages 85-86, Applicant’s Application for Review requesting a reconsideration of the Determination dated 16 May 2018.
The Applicant also provided an additional statement on 13 July 2018 and stated:[27]
The injury was an aggravation of a physical injury sustained in early 1971, which was a fractured left ankle. I am not claiming that the fracture was in any way attributed to my National Service commitment, but subsequent aggravation due to my Army service.
SUBMISSIONS
[27] Exhibit 1, T Documents, T22, pages 87-90, Applicant’s statement with accompanying annexures).
Applicant’s Submissions
The Applicant contended that while his left ankle injury was not related to service, the injury was aggravated by the performance of his duty at the Smithfield Camp between 5 and 12 January 1972.
The Applicant disagreed with the opinion of Dr Shepherd as expressed on the Final Medical Board report.[28]
[28] Exhibit 1, T Documents, T25, pages 94-96, Letter to the Respondent from the Applicant (with accompanying annexures).
In a statement dated 15 October 2018, the Applicant provided:[29]
[29] Exhibit 5, Applicant statement dated 15 October 2018.
…
This event happened some 47 years ago, I was fulfilling a National Service Duty in the CMF; firstly as a Military Policeman and then in 43 RSAR– infantry.
Some of the order of events are becoming sketchy in the memory, but all are truthful. The events detailed below are documented from the Army’s own records.
…
Summary
oAttended a camp at Smithfield on 5^th Jan 1972. I was fit and medically sound at the start of the camp- T 5 page 47– shows pay slip with date.
oWithin the first week of duties my ankle injury was aggravated due to service requirements.
oThe Army sent me to see a specialist Dr Matousek (civilian) to assess my injury.
oHe reported to Dr Shepherd (Army) whom advised discharged– medically unfit.
At the start of the camp my left ankle gave me no pain allowing me to fulfil my duties.
…
On the 12^th Jan. 1972 after a week of Army duties my left ankle was aggravated thus requiring the Army doctor to refer a consultation with a private Orthopaedic specialist. I informed him that my Army duties were causing my old ankle injury to become painful and swollen.
Logic and the facts suggest that if my ankle was functioning with no pain on the 5^th of Jan 1972 then something must have caused the aggravation on the 12^th Jan 1972.
During this entire period 5-12^th of Jan. 1972 for 24hrs a day I was at the Smithfield camp.
Therefore I sustained this aggravated ankle injury whilst performing Army duties.
IN CONCLUSION
I am not seeking monetary compensation for this event that happened 47 yrs ago, merely recognition that dismissal from the Army was due to aggravation of an existing injury as per DRCA legislated act 5A (above).
The Applicant provided additional submissions to the Tribunal on 18 March 2019 which were consistent with those outlined above.[30]
[30] Exhibit 7, Applicant’s statements dated 18 March 2019.
At the Hearing the Applicant confirmed that his left ankle fracture occurred in September 1971 and that he did not need to disclose it when he arrived at the Smithfield Camp in January 1972 as he had not been experiencing discomfort at the start of the Smithfield Camp. He reiterated his written submissions that his injury was aggravated by his service.
The Applicant had difficulty in recalling details of the work he was doing at the Smithfield Camp and other finer details, for example in relation to whether he was prescribed medicine for the pain.
The Applicant told the Tribunal he was not contending that the further medical issues he has had with his left ankle flowed from his contended aggravation.
The Applicant told the Tribunal that his initial injury and his contended aggravation was always on his mind as he felt the Army could have transferred him to a non-infantry role, but instead found him not fit enough for infantry and discharged him.
Respondent’s Submissions

The Respondent contends that the weight of statement and medical evidence supports a finding that the Applicant first suffered a fracture to his left ankle in late 1971, in circumstances outside the course of his former military employment.[31]
[31] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 9, paragraph 5.
The Respondent submits that there is no reference within the contemporaneous records to the Applicant presenting with left ankle pain, or his presenting with left ankle symptomatology on the basis of any aggravation of the then pre-existing recent fracture on account of any aspect of his military service. Rather, the Respondent contends that the contemporaneous records detail the left ankle fracture as causing functional limitations, this presumably reflected by the Applicant’s reports of increased pain on exercise, as distinct from his military service giving rise to any aggravation.[32]
[32] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 9, paragraph 8.
The Respondent therefore submits that there is no compelling medical or other evidence supporting the existence of any causal relationship between the Applicant’s left ankle fracture injury or any contended left ankle fracture aggravation injury and his former military employment.[33]
[33] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 9, paragraph 9.
CONSIDERATION
Based on the evidence before the Tribunal, I accept that the Applicant suffered a fracture of his left ankle in September 1971 of which the parties agree was not related to his military service.
I accept that the Applicant presented to the Smithfield Camp for duty scheduled between 5 and 23 January 1972. Based on the medical evidence before the Tribunal and that provided by the Applicant, it is clear that the Applicant experienced pain and swelling in his left ankle to the degree that caused him to seek medical review on 12 January 1972.
I acknowledge the time that has passed since the Applicant’s military service. I accept the Applicant’s evidence that he attributes the pain and other symptoms he experienced regarding his left ankle while at the Smithfield Camp to an aggravation of his earlier fracture caused by performing his duties. The trouble for the Tribunal is that there is no supporting medical evidence that establishes an aggravation injury beyond the initial fracture injury. The contemporaneous medical evidence provided in January and February 1972 clearly sets out that the assessing medical practitioners considered the injury and subsequent symptoms that the Applicant was experiencing related to the initial fracture, and had no connection to the Applicant’s military service. The Applicant was subsequently discharged from service. Whether medical discharge was more appropriate than reassignment is not a matter the Tribunal has jurisdiction over, however the Tribunal empathises with the Applicant and his clearly expressed desire to have been allowed to continue his military service.
In considering the evidence before the Tribunal in totality, I find that there is insufficient medical evidence to establish a causal relationship between the Applicant’s left ankle injury and/or aggravation and the Applicant’s former military service, necessary to support an acceptance of liability to pay compensation.
DECISION
I affirm the decision under review.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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Associate
Dated: 4 July 2019

Date of hearing: 2 May 2019

Applicant: In Person

Advocate for the Respondent:
Ms Rachel Blake

Solicitors for the Respondent:

Moray & Agnew Lawyers

[2019] AATA 1644

4 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	2 May 2019
Applicant:	In Person
Advocate for the Respondent:	Ms Rachel Blake
Solicitors for the Respondent:	Moray & Agnew Lawyers