Melville and Military Rehabilitation and Compensation Commission (Compensation)
[2021] AATA 1737
•7 June 2021
Melville and Military Rehabilitation and Compensation Commission (Compensation) [2021] AATA 1737 (7 June 2021)
Division:VETERANS' APPEALS DIVISION
File Number:2018/1418
Re:JONATHAN MELVILLE
APPLICANT
MILITARY REHABILITATION AND COMPENSATION COMMISSIONAnd
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:7 June 2021
Place:Brisbane
The decision under review is affirmed.
.................[SGD]....................................................
Senior Member Katter
CATCHWORDS
MILITARY COMPENSATION – Military Rehabilitation and Compensation Act 2004 (Cth) -
– pilonidal sinus – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
SECONDARY MATERIALS
Statement of Principles concerning pilonidal sinus (Balance of Probabilities) (No. 28 of 2019)
REASONS FOR DECISION
Senior Member Katter
7 June 2021
APPLICATION
This is an application to review a decision[1] as to liability pursuant to s 23 of the Military Rehabilitation and Compensation Act 2004 (Cth) (the “Act”).
[1] Exhibit 1, T46, pages 240-241.
BACKGROUND
The Applicant served in the Australian Army from 16 July 2013[2] until 9 April 2016[3], being service as defined by s 6(1)(c) of the Act.
[2] Exhibit 1, T20, page 100; T3, page 20.
[3] Exhibit 1, T3, page 20.
By a claim form signed 29 April 2015[4], the Applicant listed the following “injuries or diseases now claimed or previously accepted injuries or diseases which have become worse”[5]:
“1. Pilonidal sinus … 2. Adjustment disorder … 3. Depression … 4. Bilateral dry eye syndrome … 5. (R) Elbow Epicondylitis … 6. clinical worsening Sleep Apnoea”. In that claim form signed 29 April 2015[6] the Applicant stated as to the question, “Have the injuries or diseases you are now claiming affected your employment/performance of duties in the ADF or your ability to seek employment at any time?”[7]: “Yes … unable to perform duties to best of ability”. The Applicant sought the following “benefits” at Part F, question 21 in the claim form signed 29 April 2015[8]: “Permanent impairment compensation (for permanent physical or psychological disability) … Incapacity payments (to replace income lost due to incapacity for service or work) … Treatment … Rehabilitation”[9].[4] Exhibit 1, T19, page 99.
[5] Exhibit 1, T19, page 96.
[6] Exhibit 1, T19, page 99.
[7] Exhibit 1, T19, page 96.
[8] Exhibit 1, T19, page 99.
[9] Exhibit 1, T19, page 96.
By a letter dated 17 November 2015, the Respondent communicated a decision as to the claim lodged on 30 April 2015[10]:
[10] Exhibit 1, T46, pages 240-241.
Claimed condition 1: Pilonidal Sinus
Decisions: 1. I have rejected liability under Section 23 of the MRCA for:
Pilonidal Sinus
2. I have rejected liability under Section 23 of the MRCA for:
Aggravation of the Underlying Pathology of Pilonidal Sinus
Claimed condition 2: Adjustment Disorder
Decision: I have rejected liability under Section 23 of the MRCA for:
Adjustment Disorder with Mixed Mood
Claimed condition 3: Depression
Decision: I have not accepted liability under Section 23 of the MRCA for:
Depression
Claimed condition 4: Bilateral Dry Eye Syndrome
Decision: I have not accepted liability under Section 23 of the MRCA for:
Bilateral Dry Eye Syndrome
Claimed condition 5: Right Elbow Epicondylitis
Decision: I have accepted liability under Section 23(1) of the MRCA for:
Right Medial Epicondylitis diagnosed on 13 December 2013.
Claimed condition 6: Clinical Worsening Sleep Apnoea
Decision: I have rejected liability under Section 23 of the MRCA for:
Sleep Apnoea
By an application for review form dated 8 December 2015[11], the Applicant applied to the Veterans’ Review Board (the “Board”) for a review of the decision dated 17 November 2015[12] rejecting “liability of Aggravation of the underlying Pathology of Pilonidal Sinus”[13]. The Applicant stated in that form dated 8 December 2015[14] as to the decision of 17 November 2015[15]: “I believe that the clinical mismanagement of this condition was the major contributor to the aggravation of this condition”.
[11] Exhibit 1, T50, pages 282-283.
[12] Exhibit 1, T46, pages 240-241.
[13] Exhibit 1, T50, page 282.
[14] Exhibit 1, T50, page 283.
[15] Exhibit 1, T46, pages 240-241.
On 15 November 2017 the Board affirmed “the original determination under review in relation to pilonidal sinus”[16]. The original determination under review, as referred to by the Board[17], was the decision dated 17 November 2015[18].
[16] Exhibit 1, T2, page 10.
[17] Exhibit 1, T2, page 11, paragraph 1.
[18] Exhibit 1, T46, pages 240-241.
By an application for review of decision filed on 14 March 2018[19], the Applicant applied to the Tribunal as to the decision of the Board of 15 November 2017[20]. In the application for review, as to “why the decision is wrong”, the Applicant stated[21]:
There are inconsistencies with information contained in the [Board] determination letter.
Inconsistencies consist of: Incorrect spelling of names, Incorrect dates (onset of condition, discharge date, time between noticing the wound and seeing a doctor, to name a few), untrue accusations.
To follow this up, there was no mention that the meeting was adjourned after 15 minutes as the delegates did not read the brief (that was sent weeks before) prior to my arrival for the Interview. Had the brief been read prior to my attendance, they would have seen key information with a complete rundown of events from the onset date to surgery.
It was also mentioned that I made no mention of one of the areas being “aggravation of the underlying pathology”.
However it is clearly heard in the audio recording the mention of the dates in which I was there to provide evidence for.
I went to the [Board] o[n] the understanding it was a new contention of “Inability to obtain appropriate medical treatment”, and as such provided that evidence. At no stage was I corrected or queried as to why I made no mention of the “aggravation of the underlying pathology” contention.
At times during the conversation, a certain delegate made leading questions which ultimately changed the outcome of what was said, and ultimately took previous comments out of context.MILITARY REHABILITATION AND COMPENSATION ACT 2004 (CTH)
[19] Exhibit 1, T2, page 3.
[20]Exhibit 1, T2, page 6. The Applicant states that he received the decision on 15 December 2017 at T2 page 6, with the Board correspondence to the Applicant as to the decision being dated 11 December 2017 (T2, page 9).
[21] Exhibit 1, T2, page 7.
Sub-section 23(1) of the Act[22] states[23]:
[22] Act No. 51 of 2004, Compilation No. 62 includes amendments up to Act No. 108, 2020. Section 339 was amended by Act No. 120 of 2010.
Commission’s acceptance of liability for service injuries and diseases
When Commission must accept liability for service injuries and diseases
(1)Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a)the person’s injury or disease is a service injury or disease under section 27; and
(b)the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c)a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1:The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non-warlike service.
Note 2:The standard of proof mentioned in subsection 335(3) applies to the following:
(a)claims that the injury or disease is a service injury or disease that relates to peacetime service;
(b)all claims when determining whether a person sustained a particular injury or contracted a particular disease;
(c)all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
Section 27 of the Act relevantly states:
27Main definitions of service injury and service disease
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply: …
(d)the injury or disease:
(i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
Note:This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
Section 339 of the Act relevantly states:
339Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to a claim under section 319 for acceptance of liability under subsection 23(1) or 24(1) for an injury, disease or death that relates to peacetime service.
Note: Subsection 335(3) is relevant to these claims.
…
(3)In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or
(ii)a determination of the Commission under subsection 340(3) of this Act; and
(c)the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
Sub-section 335(3) of the Act states that in making any determination or decision in respect of a matter arising under the Act, the regulations or any other instrument made under the Act or the Regulations, the determination or decision is to be to “reasonable satisfaction”[24].
[24] Section 335 was amended by Act No. 99 of 2013.
Section 336 of the Act states that nothing in s 335 or in any other provision of the Act entitles the presumption that an injury or disease is a service injury or disease[25].
[25] Section 336 of Act No. 51 of 2004 has not been amended to compilation No. 62.
Section 334 of the Act states[26]:
[26] Section 334 of Act No. 51 of 2004 has not been amended to compilation No. 62.
334 Commission not bound by technicalities
(1)In considering, hearing or determining a claim or request mentioned in subsection (2) and in making a decision in relation to such a claim or request, the Commission:
(a)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just; and
(b)must act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(c)without limiting paragraphs (a) and (b), must take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the defence service of a member was not reported to the appropriate authorities.
(2)Subsection (1) applies to:
(a)a claim under section 319; and
(b)a request under section 349 for reconsideration of a determination.
STATEMENT OF PRINCIPLES
The parties submitted that there is an applicable statement of principles[27]: Statement of Principles concerning PILONIDAL SINUS (Balance of Probabilities) (No. 28 of 2019)[28] (the “Statement of Principles”).
[27]Submissions of the Applicant dated 24 November 2020 and Submissions of the Respondent dated 12 November 2020, pages 15-19.
[28] Dated 1 March 2019, commencing on 25 March 2019.
Section 5 of the Statement of Principles states:
5Application
This instrument applies to a claim to which … section 339 of the Military Rehabilitation and Compensation Act 2004 applies.
Section 7 of the Statement of Principles relevantly states:
7Kind of injury, disease … to which this Statement of Principles relates
(1)This Statement of Principles is about pilonidal sinus …
Meaning of pilonidal sinus
(2)For the purposes of this Statement of Principles, pilonidal sinus:
(a)means an inflammatory tissue reaction of the skin to an embedded hair which is manifested by the development of a sinus or fistula; and
(b)includes pilonidal cyst and pilonidal fistula; and
(c)excludes ingrown hair.
Section 9 of the Statement of Principles relevantly states:
9Factors that must exist
At least one of the following factors must exist before it can be said that, on the balance of probabilities, pilonidal sinus … is connected with the circumstances of a person’s relevant service:
…
(2)for pilonidal sinus of the sacrococcygeal region only:
(a)driving or being a seated passenger in a motorised vehicle for an average of at least 20 hours per week for a period of at least three months, within the six months before the clinical onset of pilonidal sinus;
(b)being overweight or obese within the six months before the clinical onset of pilonidal sinus;
…
(5)for pilonidal sinus of the sacrococcygeal region only:
(a) driving or being a seated passenger in a motorised vehicle for an average of at least 20 hours per week for a period of at least three months, within the six months before the clinical worsening of pilonidal sinus; or
(b) being overweight or obese within the six months before the clinical worsening of pilonidal sinus;
…
(7)inability to obtain appropriate clinical management for pilonidal sinus.
The Schedule 1 Dictionary in the Statement of Principles states relevantly:
1Definitions
In this instrument:
being overweight or obese means having a Body Mass Index (BMI) of 25 or greater.
Note: BMI is also defined in the Schedule 1 - Dictionary.
BMI means W/H2 where:
W is the person’s weight in kilograms; and
H is the person’s height in metres.
Section 10 of the Statement of Principles states:
10Relationship to service
(1)The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.
(2)The factors set out in subsections 9(4) to 9(7) apply only to material contribution to, or aggravation of, pilonidal sinus where the person's pilonidal sinus was suffered or contracted before or during (but did not arise out of) the person's relevant service.
ISSUE
The issue is whether pilonidal sinus or the aggravation of pilonidal sinus is connected with the circumstances of the Applicant’s relevant service[29].
[29] Transcript 26 August 2020, P-10, lines 45-46 and P-11, line 4.
EVIDENCE
The Applicant gave oral evidence at the hearing[30].
[30] Transcript 26 August 2020, P-14-53.
The Applicant stated that he first noticed on his body a “small lump” in 2005[31], having an ultrasound done at that time[32]. The Applicant stated that there were “no issues” as to that “small lump” in the period 2006 to 2010[33].
[31] Transcript 26 August 2020, P-18, lines 8-9.
[32] Transcript 26 August 2020, P-18, line 9.
[33] Transcript 26 August 2020, P-18, lines 16-20.
The Applicant referred to the “small lump” “reappearing again”[34] in 2011, then having surgery done within 3 weeks after the “reappearance”[35]. The Applicant stated that he had a final review with the surgeon in November 2011 and had “no issues with it from that point on”[36].
[34] Transcript 26 August 2020, P-18, line 12.
[35] Transcript 26 August 2020, P-18, lines 13-14.
[36] Transcript 26 August 2020, P-18, lines 29-30.
The Applicant had a body mass index of 26.47 recorded in a medical examination report dated 30 January 2013[37].
[37] Exhibit 20, E8, page 19.
The Applicant is recorded as having a body mass index of 25.71 on 16 July 2013 in a further medical assessment[38].
[38] Exhibit 20, E16, page 39.
The Applicant was at Kapooka in 2013, then at Kokoda Barracks, Canungra, from October 2013 to December 2013, starting further training in January 2014[39]. From October to December 2013 the Applicant participated in a “pre-course” to an Australian Soldiers Intelligence Development Course (“ASIDC”) at Kokoda Barracks Canungra[40]. The Applicant was at Kokoda Barracks until the conclusion of his service in 2016[41], living on base[42].
[39] Transcript 26 August 2020, P-17, lines 6-9.
[40] Transcript 26 August 2020, P-39, lines 27-28.
[41] Transcript 26 August 2020, P-17, line 32.
[42] Transcript 26 August 2020, P-17, line 41.
The Applicant stated that he participated in firing drills “quite often” and in various capacities and natures[43] as part of the ASIDC course[44]: “ … we did a lot of firing drills and they were varied with what we did … ”[45]. As to the firing drills, the Applicant stated further[46]: “ … a possible caus[e] of the condition was when I was at the firing range going from a standing position to a seated position with a rifle in both arms … ”. The Applicant referred to “sitting on the hard ground” at “a lot of locations” during various “firing activities” that he participated in while at Canungra[47]. The Applicant also referred to a 30-kilometre kayaking exercise between the Gold Coast and Stradbroke Island, undertaken as part of the ASIDC course, specifically referring to the impact of that activity on his condition[48].
[43] Transcript 26 August 2020, P-40, lines 27-32.
[44] Transcript 26 August 2020, P-40, lines 1-5.
[45] Transcript 26 August 2020, P-40, lines 1-2.
[46] Transcript 26 August 2020, P-40, lines 3-5.
[47] Transcript 26 August 2020, P-40, lines 27-32.
[48] Transcript 26 August 2020, P-43, lines 38-44.
The Applicant referred to 29 January 2014[49] as a date when he “noticed a stinging sensation at the base of the spine and having had a previous surgery in that area [he] knew [he] needed it to be checked straightaway”[50].
[49] Transcript 26 August 2020, P-26, line 41.
[50] Transcript 26 August 2020, P-14, lines 38-40.
The Applicant was asked by the Respondent about whether he was “overweight” during his service and stated in response: “No, I was not”[51].
[51] Transcript 26 August 2020, P-20, lines 1-2.
The Applicant’s body mass index was 26.2 on 11 February 2014, as stated in a letter of that date by a sleep physician, Dr Allan Finnimore[52].
[52] Exhibit 20, E496, page 2023.
The Applicant’s body mass index was 26.8 on 25 February 2014, as stated in a report by Dr Allan Finnimore dated 4 March 2014[53].
[53] Exhibit 20, E226, page 381.
The Applicant referred to then having relevant surgery, after a number of medical appointments and referrals, on 29 April 2014[54].
[54] Transcript 26 August 2020, P-14, lines 40-42.
The Applicant stated that he was discharged from the Greenslopes Private Hospital on 3 May 2014 and was sent back to the Enogerra Health Centre[55]. Whilst at the Enogerra Health Centre the Applicant stated that the “wound degraded considerably” and the Applicant was returned to the Greenslopes Private Hospital by ambulance on 6 May 2014[56]. The Applicant was then discharged from the Greenslopes Private Hospital on 22 August 2014, then receiving further treatment after that date at the Enogerra Health Centre[57].
[55] Transcript 26 August 2020, P-14, lines 42-44.
[56] Transcript 26 August 2020, P-14, lines 44-47.
[57] Transcript 26 August 2020, P-15, lines 41-43.
On 9 September 2014 the Applicant was referred for an ultrasound, in that there had been discharge from a wound the week prior[58]. On 10 September 2014 there was a note that the ultrasound process itself had opened-up the wound again and “that the sharp pains were increasing” in the area[59].
[58] Transcript 26 August 2020, P-16, lines 3-5.
[59] Transcript 26 August 2020, P-16, lines 5-7.
CONSIDERATION
It is not in contention between the parties that the Applicant had a recurrence of pilonidal sinus during service[60]. That is, it was not in contention that there was pilonidal sinus as that phrase is defined in section 7(2) of the Statement of Principles, being an inflammatory tissue reaction of the skin to an embedded hair which is manifested by the development of a sinus or fistula, including a pilonidal cyst and pilonidal fistula[61].
[60] Transcript 26 August 2020, P-9, lines 16-17.
[61]Statement of Principles concerning PILONIDAL SINUS (Balance of Probabilities) (No. 28 of 2019) dated 1 March 2019, commencing on 25 March 2019.
Section 5 of the Statement of Principles states that the instrument applies to a claim to which section 339 of the Act applies. Section 339 states that the section applies to a claim under section 319 for acceptance of liability under sub-section 23(1) for an injury or disease that relates to peacetime service. The note in sub-section 339(1) states that sub-section 335(3) is relevant to a claim under section 319 for acceptance of liability under sub-section 23(1). Sub‑section 335(3) states that in making a decision in respect of a matter arising under the Act or any instrument made under the Act, the Commission must decide the matter to its reasonable satisfaction.
Section 9 of the Statement of Principles states that at least one of the factors must exist before it can be said that, on the balance of probabilities, pilonidal sinus is connected with the circumstances of the relevant service.
As to the factors in the Statement of Principles that must exist before it can be said that, on the balance of probabilities, pilonidal sinus is connected with the circumstances of the Applicant’s relevant service, the Applicant made reference to factual matters relevant to sections 9(2)(a) and 9(5)(a) (driving or being a seated passenger for an average of at least 20 hours per week), sections 9(2)(b) and 9(5)(b) (being overweight or obese within the six months before the clinical worsening) and section 9(7) (inability to obtain appropriate clinical management).
There is no contention by the Respondent that the Applicant’s pilonidal sinus was of a region other than the “sacrococcygeal region” (sections 9(2) and (5) of the Statement of Principles).
The Applicant led much evidence and made submissions particularly on s 9(7) (inability to obtain appropriate clinical management)[62]. The Applicant submitted that there was an inability to obtain appropriate clinical management for the pilonidal sinus, both as to medical and clerical management[63]. As referred to above, between when the Applicant “noticed a stinging sensation at the base of the spine” on 29 January 2014[64] and the surgery for the condition on 29 April 2014[65], the Applicant had a series of medical appointments and referrals. On 29 January 2014[66] the Applicant consulted Dr Parsons[67]. There were then notes as to the Applicant seeing a nurse on 31 January 2014[68]. On 11 February 2014 there was then a further attendance before a nurse, with an appointment made to see Dr Fisher[69]. The Applicant saw Dr Fisher on 14 February 2014[70]. The Applicant then saw Dr Vujovic on 28 February 2014, who provided a report to Dr Parsons[71]. There is a notation on 17 March 2014 as to continuing with antibiotic treatment and having attended upon a general surgeon[72]. On 16 April 2014 the Applicant attended with Dr Allison who provided a report to Dr Parsons, providing options for treatment including leaving things alone, excising the recurrence and leaving it open with multiple dressings on a daily basis for many months[73]. Dr Allison’s report finishes with: “I will arrange it under my care at a time convenient with regard to his other commitments”[74]. Surgery occurred on 29 April 2014[75]. The Applicant was re-admitted to the hospital on 6 May 2014 because of extensive abscesses[76]. Section 9(7) refers to “inability”, in contrast to there being, for example, a difficulty or delay in obtaining appropriate clinical management for pilonidal sinus. In all the circumstances there was not an “inability” to obtain appropriate clinical management.
[62] Transcript 26 August 2020, P-21, lines 11-14.
[63] Transcript 26 August 2020, P-21, lines 11-14.
[64] Transcript 26 August 2020, P-26, line 41.
[65] Transcript 26 August 2020, P-14, lines 40-42.
[66] Applicant’s Final Submissions, 17 October 2020, page 63.
[67]Transcript 26 August 2020, P-26, lines 35-45; Applicant’s Final Submissions, 17 October 2020, pages 69 and 70.
[68] Transcript 26 August 2020, P-27, lines 3-4.
[69] Transcript 26 August 2020, P-27, lines 4-6.
[70] Transcript 26 August 2020, P-27, lines 11-12.
[71] Transcript 26 August 2020, P-27, lines 41-43.
[72] Transcript 26 August 2020, P-28, lines 10-13.
[73] Transcript 26 August 2020, P-31, lines 15-25.
[74] Transcript 26 August 2020, P-31, lines 26-27.
[75] Transcript 26 August 2020, P-34, line 6.
[76] Transcript 26 August 2020, P-34, lines 14-15.
There is insufficient evidence to find that the Applicant met the requirements in either section 9(2)(a) or 9(5)(a) of the Statement of Principles, either driving or being a seated passenger in a motorised vehicle for an average of 20 hours per week for at least three months within the six months before the clinical onset or clinical worsening of pilonidal sinus.
As to whether section 9(5)(b) was relevant, the Applicant stated that: “ … given the date of 16/07/13 with a BMI of 25.71, I would say that that’s relevant … ”[77]. In the written submissions of the Respondent dated 12 November 2020, the Respondent submitted that section 9(5)(b) of the Statement of Principles did not exist[78]. In the written submissions of the Applicant dated 17 October 2020, the Applicant submitted that the section 9(5)(b) did exist.
[77] Transcript 26 August 2020, P-54, lines 15-18.
[78] Submissions of the Respondent, dated 12 November 2014, page 20, paragraph 74.
The phrases “clinical onset” as used in section 9(2)(b) and “clinical worsening” as used in section 9(5)(b) are not defined in the Schedule 1 Dictionary of the Statement of Principles. The Respondent submitted that the “recurrence” and clinical worsening of the Applicant’s pilonidal sinus occurred concurrently on 29 January 2014[79]. The Applicant stated that he first began to notice signs and symptoms of the condition on 29 January 2014 and that that was the date he first consulted Dr Parsons[80]. The Applicant submitted that the date of the condition’s “clinical onset” was therefore 29 January 2014[81]. The Applicant submitted evidence that the clinical onset occurred prior to the “clinical worsening”[82], with the “clinical onset” being the reporting of the symptoms to Dr Parsons and the “clinical worsening” being the noting of these signs and symptoms by Dr Vujovic[83]. The Applicant submitted that the date of the “clinical worsening” of the pilonidal sinus, for the purposes of 9(5)(b), is 28 February 2014[84], with that date being the date of the medical report by a Dr Vujovic[85].
[79] Submissions of the Respondent, dated 12 November 2014, page 20, paragraph 72.
[80] Transcript 26 August 2020, P-26, lines 40-45.
[81] Applicant’s Final Submissions, 17 October 2020, page 63.
[82]Applicant’s Final Submissions, 17 October 2020, pages 56 and 63; E500, page 2849; E670, page 4251.
[83] Applicant’s Final Submissions, 17 October 2020, page 63.
[84] Applicant’s Final Submissions, 17 October 2020, page 63.
[85] Exhibit 20, E496, page 2022.
Both factors 9(2)(b) and 9(5)(b) of the Statement of Principles refer to being obese “within” the six months before the clinical onset and worsening of pilonidal sinus, respectively. The common factor referred to in sections 9(2)(b) and 9(5)(b) of the Statement of Principles is being overweight or obese, that is, having a BMI of 25 or greater, within six months before the clinical onset or worsening of pilonidal sinus.
Sections 9(2)(b) and 9(5)(b) of the Statement of Principles ask whether the Applicant was overweight or obese within the six months before the clinical onset or clinical worsening, respectively. The definition in Schedule 1 as to the phrase “being overweight or obese” is defined, as referred to above, as having a body mass index of 25 or greater, with body mass index also being defined by reference to weight and height in the Schedule.
The Respondent submitted that there was an absence of relevant body mass index data in the six-month period prior to 29 January 2014[86]. The Applicant submitted that he had a body mass index greater than 25 within the six months before 28 February 2014[87]. The Applicant referred to the two articulations by Dr Allan Finnimore, which record the Applicant’s body mass index as being 26.2 on 11 February 2014[88] and 26.8 on 25 February 2014[89], prior to the date of 28 February 2014, being the date the Applicant submitted as the date of clinical worsening of his pilonidal sinus.
[86] Submissions of the Respondent, dated 12 November 2014, page 20, paragraphs 73-74.
[87] Applicant’s Final Submissions, 17 October 2020, page 69.
[88] Exhibit 20, E496, page 2023.
[89] Exhibit 20, E226, page 381.
The Applicant served, including at Kapooka, after the body mass index reading of 25.71 on 16 July 2013. The Applicant was completing the ASIDC course at Kokoda Barracks, Canungra, from October to December 2013, with the higher two body mass index results of 11 February and 25 February 2014 occurring after that course. Therefore, the available evidence is that the Applicant’s body mass index was not below the defined level in the Statement of Principles as to being overweight or obese. The word used in sections 9(2)(b) and (5)(b) is “within”, in contrast to being that weight for the entire six months before. It is found that the Applicant had a weight and height such that his body mass index was greater than 25 “within the six months before” 29 January 2014 or 28 February 2014; the earlier being the date that the Applicant consulted Dr Parsons, being the date of clinical worsening submitted by the Respondent. If the later date submitted by the Applicant for clinical worsening, 28 February 2014, is used, then the Applicant’s weight and height is likewise above the body mass index level of 25 “within the six months before” that later date. The Applicant was, therefore, as defined in the Statement of Principles, overweight or obese within the six months before the clinical onset or worsening of pilonidal sinus of the sacrococcygeal region.
In accordance with s 10(1) of the Statement of Principles, the existence in a person of any factor referred to in sections 9(2)(b) or 9(5)(b), must be related to the relevant service rendered by the person. Section 10(1) requires that the existence of the Applicant’s BMI being 25 or greater must be related to the relevant service. The Applicant’s initial BMI of 26.47 at 30 January 2013[90] indicates that the Applicant’s starting BMI being at or above 25 was unrelated to the relevant service. The BMI reduced to 25.71 at 16 July 2013[91] and then increased to 26.2 on 11 February 2014[92] and 26.8 on 25 February 2014[93], with those changes relating to service. As referred to above, the available evidence is that the Applicant’s body mass index was not below 25. The “existence” of the Applicant’s BMI at at a level of 25 or greater before the relevant service does not satisfy the requirement that the “existence” of the Applicant’s BMI at or above 25 be related to the Applicant’s relevant service.
[90] Exhibit 20, E8, page 19.
[91] Exhibit 20, E16, page 39.
[92] Exhibit 20, E496, page 2023.
[93] Exhibit 20, E226, page 381.
In that the factor’s existence is not therefore connected to the relevant service under section 10(1) of the Statement of Principles, there is no need to consider section 10(2).
Therefore none of the factors of the Statement of Principles exists, as referred to above, being those in sections 9(2)(a) and (b), 9(5)(a) and (b) and (7). Therefore, it “can be said”[94] that, on the balance of probabilities, the Applicant’s pilonidal sinus is not connected with the circumstances of the Applicant’s relevant service. There is no acceptance therefore of liability for a service injury or disease in accordance with section 23(1). The decisions numbered “1” and “2” to reject liability under section 23 of the Act for “pilonidal sinus” and “aggravation of the underlying pathology of pilonidal sinus”, communicated by the letter of 17 November 2015 are affirmed.
[94] The phrase used at the start of section 9 in the Statement of Principles.
DECISION
The decision under review is affirmed.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
....................[SGD]...............................................
Associate
Dated: 7 June 2021
Dates of hearing: 8 August 2019, 26 and 27 August 2020 Date final submissions received: 24 November 2020 Applicant: In person Advocates for the Respondent:
Solicitors for the Respondent:
Ms R. Blake (8 August 2019) and Mr P. Mentor (26 and 27 August 2020)
Moray & Agnew Lawyers
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