O'Bryan and Military Rehabilitation and Compensation Commission (Compensation)

[2022] AATA 4795

O'Bryan and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 4795 (21 December 2022)

Division:VETERANS’ APPEALS DIVISION

File Number:          2020/8176

Re:Shane O'Bryan

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

Decision

Tribunal:R Cameron Senior Member

Date:21 December 2022

Place:Melbourne

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

........................................................................

R Cameron Senior Member

CATCHWORDS

COMPENSATION – army service – claimed right medial epicondylitis – respondent accepting a range of claims but denies liability of right medial epicondylitis – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation (Defence -related Claims) Act 1988, (Cth)

REASONS FOR DECISION

R Cameron Senior Member

21 December 2022

INTRODUCTION

1. The applicant seeks a review of a decision made on 16 November 2020, which denied liability under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (“the Act”) for “right medial epicondylitis”. (“The reviewable decision”)[1].

   [1] The reviewable decision is at pages 196 to 204 of the T-documents.

   THE EVIDENCE BEFORE THE TRIBUNAL

2. There was documentary and oral evidence before the Tribunal.

3. The applicant and Associate Professor Michael Wren, a Consultant Orthopaedic Surgeon, gave oral evidence.

4. There was an array of documentary evidence before the Tribunal, which included the following:

   (a)The ‘T’-documents lodged on 4 January 2021 pursuant to s 37 of the Administrative Appeals Tribunal Act 1975;

   (b)The ‘ST’ documents lodged on 19 July 2022;

   (c)The documents summonsed from Dr Brett D’Cunha;

   (d)Reports dated 22 November 2021 and 9 April 2022 from Associate Professor Martin Richardson;

   (e)Reports from Associate Professor Michael Wren dated 16 August 2021 and 17 December 2021;

   (f)Statutory declaration and attached statement made by the applicant on 29 January 2021;

   (g)Confidential Submission for the Royal Commission into Veterans’ Suicide made by the applicant;

   (h)Two MRI & Ultrasound reports concerning the applicant, dated 19 September 2020 and 27 April 2021; and

   (i)EMG results concerning the applicant dated 14 September 2020 Dr Simon Li.

   PROCEDURAL HISTORY

5. It is acknowledged that the applicant has been diagnosed with the condition known as Right Medial Epicondylitis (“the condition”).

6. On 2 December 2019, the applicant lodged a claim for compensation with respect to the condition and several other complaints from which he suffered.

7. On 20 May 2020, the respondent issued a determination accepting liability for a range of other complaints but denying liability for, amongst other things, the condition itself (“the determination”).

8. On 15 June 2020, the applicant sought a reconsideration of the determination concerning the condition and also Temporomandibular Disorder.

9. A Reconsideration Officer of the respondent made the Reviewable Decision on 16 November 2020, affirming the determination with respect to the condition. The respondent accepted liability for Temporomandibular Disorder. It is from this decision that the applicant seeks review in this Tribunal.

   AN OVERVIEW OF THE APPLICABLE SECTIONS OF THE ACT

10. For the purposes of these reasons, it is not necessary to reproduce in full the applicable sections of the Act.

11. Section 14 of the Act provides that the respondent is liable to pay compensation in respect of an injury suffered by an employee if such injury results in death, incapacity for work or impairment. Section 16 of the Act provides that the respondent is liable to pay the cost of medical treatment in relation to the injury.

12. The term “disease” is defined in section 5B(1), (which is an injury under section 5A of the Act) as an ailment suffered by an employee, or an aggravation of such ailment, contributed to, to a significant degree by the employee’s employment. Section 5B(2) of the Act provides that in determining whether an ailment aggravation was contributed to, to a significant degree, by an employee’s employment several matters may be taken into account. Those matters include, the duration of the employment; the nature of and tasks involved in, the employment; any predisposition of the employee to the ailment aggravation, any activities of the employee not related to the employment, and any other matters affecting the employee’s health. The term “significant degree” is in section 5B(3) of the Act said to mean a degree that is substantially more than material.

    THE ISSUE FOR DETERMINATION BY THE TRIBUNAL

13. The respondent does not dispute that the applicant suffered from the condition. The respondent contends, however, that there is no evidence that the applicant’s employment with the Commonwealth by reason of his military service contributed to a significant degree to such a condition.

14. Therefore, there is one issue for determination by the Tribunal in this application. That issue was whether the applicant’s ailment was contributed to, to a significant degree, by his military service.

    BACKGROUND

15. The applicant was born in September 1966 and is presently 56 years old. He served in the Army between 29 January 1986 and 5 November 2000.

16. A reasonably detailed overview of the applicant’s service history, which he says contributed to the condition, was contained in a document prepared by him entitled “Response to Reconsideration No: Q2020-870”, which was annexed to a statutory declaration that he made on 29 January 2021. This document was in evidence before the Tribunal. He also gave some evidence from the witness box about those aspects of his service history, which he says contributed to the onset of the condition.

17. In December 1986, the applicant was selected to become a Roping & Rappelling instructor and attended a course at 2 Commando Company in Melbourne. He says that during the  course, he first experienced significant and persistent pain in his elbow joints that did not resolve itself over time. The condition arose due to engaging in rope climbing.  

18. In mid-1997, the applicant attended a Cliff Assault and Haulage Course. The course was two weeks in length. The applicant described it as being very taxing on the hands, forearms, elbows and biceps, as participants had to scale cliffs and similar terrain wearing full equipment. He stated the activity that most aggravated the condition was scaling 30m steel rope ladders in full battle order, which required the participant to carry an additional 30 kg. Another task that the participants had to undertake was to carry in a pinch grip two house bricks. The reason for this was to increase grip strength. The applicant stated that, in many instances, this activity caused tendon inflammation and other overuse injuries.

19. Also, in approximately mid-1997, the applicant attended a small craft handling course that lasted two weeks. He says that the training activities undertaken in that course which either led to or exacerbated his condition, were carrying a completely loaded Zodiac inflatable craft, and separately lifting and carrying twin 25hp Mercury outboard motors. The Zodiac was to be carried, as he put it, “innumerable times to exhaustion”. The exhaustion usually led to what he described as “grip failure”. With respect to carrying the outboard motors, he stated that most participants in the program were unable to carry them with straight elbows. In his experience, such activity greatly exacerbated his injury.

20. In the second half of 1997, the applicant attended a compressed nine-day basic parachute training course at Nowra. He states that there was no break that would have provided some degree of physical respite during that course. The applicant also gave evidence that elbow tendon soreness was, as he put it, an endemic condition of the participants of the basic parachute training course. The reason for this was that as part of the training, a participant pulled one’s own body weight in what is described as “risers” that simulated being “under canopy”. He gave evidence that the participants were warned about the prospect of tendon soreness and were told that it would resolve with the passage of time. Additionally, he stated that various analgesics, including Panadol Forte and Voltaren, were readily made available. However, no documentation before the Tribunal recorded this fact.

21. Relevantly, for the purposes of this application, in the statutory declaration of 29 January 2021 accompanying the applicant’s Response to Reconsideration and from the witness box, the applicant stated that in the last half of 1997 and the first half of 1998, he was administered cortisone injections in his Achilles tendons and elbows by Regimental Medical Officer Captain Etough, which were not recorded in his medical files, as was the convention of the time.

22. The Applicant also identifies several other gaps or missing items in his service medical history. There was a posting to Malaysia in 1995, where he contends that he received medical treatment on several occasions. These attendances for medical treatment were not recorded in his file.

23. Additionally, he refers to an injury he sustained in both ankles during a night landing whilst undertaking his basic parachute training course at Nowra in 1997. No record of the actual incident is in the relevant files. He contends that, the accompanying medical paperwork from that course was not filed.

24. It is appropriate to note that the applicant readily conceded that at his final medical board upon discharge from the Army, he did not mention that he was suffering from the condition. Indeed, on or about the time of his discharge from the Army, the applicant, on 24 August 2000, signed a Medical History Questionnaire which he declared was true and complete to the best of his belief.[2] The applicant put the failure to mention his elbow problems as now claimed, both during the course of his service and upon his discharge, down to the fact that as a Special Forces officer, it was customary for them to have low levels of a somatic complaint; or in layman’s terms, that they just lap it up and get on with it. In his evidence, he also said it was due to the stoic nature of Special Forces soldiers whose attitude or approach was to refuse to admit any pain. Another explanation he offered in his evidence, was that the approach of his unit was that they “do not whinge” and “it is inherent in special forces that you don’t whinge”.

    [2] Page 236 of the ST documents.

25. The applicant also gave evidence to the effect that he did not raise a complaint about the condition because he is of an indigenous background. He stated that during his time in the Army, he did experience discrimination and various forms of abuse. Therefore, he did not complain to avoid further racial vilification and racial profiling that such a complaint might trigger.

26. It appears that the applicant first sought medical treatment for the condition approximately a year after his discharge from the Army. The applicant sought such treatment from a general practitioner in Canberra. The applicant was unable to recall the name of the doctor, or the medical practice concerned. There were no records in evidence before the Tribunal concerning the attendance of this general practitioner or any treatment that was administered.

27. The first record of the condition being diagnosed is to be found in a “Disease and injury details sheet”, which was prepared and signed by the applicant’s treating general practitioner, Dr D’Cunha, on 21 November 2019.[3]

    THE MEDICAL EVIDENCE

    [3] Page 48 of the T-documents.

    Associate Professor Richardson

28. Associate Professor Richardson is an orthopaedic surgeon. He did not give evidence at the hearing before the Tribunal. In evidence were two reports prepared by him dated 22 November 2021 and 9 April 2022.[4] He has been treating the applicant since April 2021.

    [4] The report of Associate Professor Richardson of 22 November 2021 was addressed to the Tribunal. His report of 9 April 2022 was addressed to the applicant's treating general practitioner Dr D’Cunha.

29. Associate Professor Richardson opines that the condition suffered by the applicant is significantly related to the rigours of infantry and Special Forces service. He also considered that the applicant, after his discharge from the Army, had refrained from adequate medical treatment for a number of years despite experiencing a number of physical impairments, restrictions and pain.

30. Additionally, Associate Professor Richardson observed the applicant had undergone multiple bilateral cortisone injections at Diagnosticare under his direction. He stated that it was clear to him that the condition had been long-standing and that it had first presented itself during the applicant’s relevant service.

31. Insofar as it is an opinion that Associate Professor Richardson was able to express, he stated that with respect to the applicant’s attendance at the basic parachute training course at Nowra in 1997, it was not unusual for medical interventions to be undocumented.

32. Finally, Associate Professor Richardson repeated his opinion that based upon the applicant’s presentation, service history, imagery and attempts at resolution, that the condition was caused to a significant degree by his relevant service.

    Associate Professor Wren

33. Associate Professor Wren is a consultant orthopaedic surgeon. He gave evidence from the witness box at the hearing of the application. Also, in evidence from him were two reports dated 16 August 2021 and 17 December 2021. He conducted an assessment of the applicant on 30 July 2021. At the time of his assessment, he did not have the benefit of any medical images of the applicant’s elbows. Subsequently, he was furnished with ultrasound images and MRI’s for both elbows.

34. He recorded that the applicant reported profound functional deficits to be present, such that he cannot hold a book for more than a few minutes, cannot carry a shopping bag of 3kg to 4kg for more than a few minutes, and has difficulty manipulating the keys in his hand or fastening buttons, and frequently drops even small items from his grasp to the point that he has put rubber mats on his kitchen floor to compensate for that.

35. Associate Professor Wren also recorded that physical examination findings, at the time he examined the applicant, were of reported tenderness of both medial and lateral epicondyles. He also noted a reproduction of reported pain in the medial aspect of elbow with group activities with the elbow in a flexed position and reproduction of lateral elbow pain with resisted finger and wrist extension predominantly with the elbow in the extended position.

36. He also observed there was an apparent restriction of the range of flexion of both elbows, which was variable, but some ongoing limitation in range of motion was evident when elbow flexion to maximum was requested. Associate Professor Wren then expressed the opinion that the problem of medial and lateral epicondylitis is not expected to produce that apparent sign and that there are no other known problems, such as arthritis, to explain that anomaly. Therefore, he expressed the opinion that on the basis of this and additional aspects of history and examination, the submaximal effort was considered by him to be likely responsible for that finding.

37. He also observed that reduced power of elbow flexion and extension was identified. He stated that it is a rare clinical finding in lateral epicondylitis or medial epicondylitis and is usually only seen in extreme circumstances.

38. Associate Professor Wren recorded that there was an apparent restriction of grip strength of the hand to only 8kg on each side, which is very much reduced on expectation for a middle-aged male. Therefore, he suspected that the apparent limitation was also a manifestation of submaximal effort.

39. He also recorded that despite the history of marked limitation of capacity for even light manipulation or gentle use of upper limbs, the applicant had established calluses over the metacarpal heads of the third, fourth and fifth metacarpal of the right and left hand. To him, that suggests a significant, regular, quite forceful use of hands for lifting activities. He also said with respect to this observation that distributions of symmetric nature in those three digits are most commonly seen with individuals undertaking weightlifting activities. This finding would be compatible with the regular lifting of moderate weights on a regular basis over many weeks or months. He stated that this finding is completely incompatible with the history of only being able to lift up a 3kg or 4kg shopping bag.

40. Associate Professor Wren then stated that this physical finding is totally inconsistent with the history of physical limitations provided by the applicant’s history of current capacity. The assessment of capacity for activity is reliant upon the applicant’s reported history of level of physical tasks being currently undertaken. He then observed that the applicant is showing clinical features of regular, recent and quite forceful use of both upper limbs. Therefore, he concluded that he did not believe the physical examination features were consistent with the history provided by the applicant of profound functional incapacity.

41. Associate Professor Wren concluded that there is no verifiable functional impairment of the elbows due to either medial or lateral epicondylitis, irrespective of what anatomic abnormalities might be evident in current radiographic studies. He then went on to express the opinion that the time gap, between the reported onset of symptoms in military service and the first verifiable medical presentation, is such that if there are currently any genuine symptoms and dysfunction of the elbows, then there is nothing to link that with military activities approximately 23 years ago. Therefore, it is more likely that any current symptoms relate to whatever activity is currently being undertaken that has been responsible for the development of calluses in the applicant’s hands, as explained earlier.

42. Associate Professor Wren repeated that with regard to the diagnosis of right medial epicondylitis, he did not believe there were currently significant functional problems based on clinical presentation. He stated that in contemporary orthopaedic practice, a complete absence of abnormality of the common flexor tendon origin/medial epicondyle on MRI scan is considered to have completely excluded “Tennis elbow”/ medial/epicondylitis /common flexor tendinopathy. He emphasised that the MRI scan showed no detectable abnormalities of the medial epicondyles or common flexor origin. He also expressed the opinion that had there been an abnormality in the applicant’s elbows, as claimed, it had resolved by the time the MRI scan was undertaken.

43. Associate Professor Wren was asked to express opinions on Associate Professor Richardson’s report of 22 November 2021. He stated that he disagreed with Associate Professor Richardson’s diagnosis of medial epicondylitis of the right elbow. He acknowledged that there was an initial interpretation to that effect by a radiologist of an ultrasound revealing thickening of the common flexor origin in the region of the medial epicondyle of the right elbow. This interpretation, however, was not borne out by the MRI scan, which showed no detectable abnormality of the medial epicondyle on either elbow or of the common flexor region. He concluded that the MRI scan completely excludes the presence of that condition.

    CONSIDERATION

44. The Tribunal has some concerns about the veracity of various aspects of the applicant’s evidence. The Tribunal finds it difficult to accept the applicant’s evidence that he did not make a complaint about the condition whilst he was in the army due to the approach of special forces officers not whingeing and the fact of him being of indigenous background. There are several reasons for this.

1. The applicant presented as a forthright individual, very much alive to protecting his own interests.

2. The applicant was searchingly cross-examined as to his medical history whilst in the Army. It should be observed that there was a vast array of medical and like records tendered in evidence, contained in both the T and the ST documents. Those records contained numerous references to all manner of conditions and complaints that the applicant had reported to various healthcare professionals, including doctors and physiotherapists, throughout his term of service in the Army.

3. It is not necessary for the purpose of these reasons to reproduce each and every reference in those documents that was addressed in the course of cross-examination. However, it is quite apparent from his cross-examination and reference to the relevant records that the applicant frequently, throughout his service, reported a significant variety of complaints and conditions to treating healthcare professionals. Several of those complaints were for comparatively minor conditions, certainly much less significant than the condition which is the subject matter of this application before the Tribunal.

4. By way of example, in 1989, he reported a skin rash to the medical officer.[5] On other occasions, he had reported a fungal infection, tinea and warts. There are a series of records in evidence from his admission for treatment in 1997, including Admission Data, Discharge Data, a Body Chart and extensive Outpatient Clinical Records.[6] These documents contain references to both ankles and treatment undertaken. There is simply no reference to the applicant’s elbows. Given that the applicant said that the condition first occurred in that year, one would have expected to have seen some reference in these records to such a condition. A report of a Peripheral Examination with respect to an injury suffered on an exercise, on 16 October 1998 was in evidence.[7] That report revealed a light ankle sprain. On other occasions, he had reported lower back pain or back strains.[8] There were references to the applicant suffering back pain as a result of undertaking weightlifting.[9] Another example was a physiotherapist report dated 26 October 1998 in which she had conducted both a subjective and objective assessment of the applicant.[10] An examination of that report reveals that the physiotherapist had examined the applicant’s ankle, but there is absolutely no reference to the elbows. It is self-evident from an examination of that report that the applicant had directed the physiotherapist to examine the ankle concerned.

   [5] See the Medical Attendance and Treatment Report dated 31 May 1989 at page 177 of the ST documents.

   [6] Pages 13-18 of the ST documents.

   [7] Page 25 of the ST documents.

   [8] By way of example, see page 163 of the ST documents, which is a Medical Attendance and Treatment Report. There were other references to back pain in documents found at pages 39, 90, 153 and 155 of the ST documents.

   [9] Pages 189 and 205 of the ST documents.

   [10] The physiotherapist report is at page 26 of the ST documents.

5. The applicant, in cross-examination, did not dispute the accuracy of the records that were put to him. He also conceded that he did report the various conditions and afflictions from which he was suffering, as recorded in those records. He clearly had the propensity to report and obtain treatment for any conditions from which he suffered, even those of a relatively minor nature. Having had the opportunity also to observe the applicant in the witness box, the Tribunal cannot accept that if he suffered from the condition to his elbows of which he now complains, that he would not have reported that condition, as and from the time that he developed such a condition in 1996 or 1997. The applicant would have reported such a condition to the appropriate treating health care practitioners, as he had done with all the other complaints that he had made, some of which were comparatively minor in the scheme of things.

6. There was also some level of inconsistency between the applicant’s oral evidence and his written evidence concerning the treatment of his elbows whilst in the Army. As noted, there was the initial evidence given by the applicant that he did not report the condition when he suffered at first, and thereafter, because Special Forces soldiers do not whinge and because of his indigenous background. The applicant was then confronted with the fact that he had informed Associate Professor Wren that he had obtained some treatment whilst in the Army by seeing a field medic on several occasions and, on at least one occasion, was prescribed analgesics and ice packs. He was also informed that it would resolve itself. His evidence then shifted slightly where he agreed that he had sought first-aid and was told that it would resolve itself. It was pointed out to the applicant that this differed from the contents of his statutory declaration and the attached statement. The applicant’s evidence then shifted again, and he stated he sought treatment in an Army ambulance for cortisone injections to his ankles and elbows. The injections to his elbows, he stated, were only to his lateral elbows, not in his medial elbows whilst in the Army. The Tribunal views this shift in the applicant’s evidence with some concern.

7. Finally, as noted above, at the time of his discharge from the Army, the applicant, on 24 August 2000, signed a Medical History Questionnaire which he declared was true and complete to the best of his belief. The document speaks for itself, but it contains a reference to a range of conditions and afflictions the applicant suffered or experienced throughout the course of his Army service. That document contained no reference to the condition from which he now complains.

8. The Respondent contended, and the Tribunal agrees, that there is some inconsistency with respect to the applicant’s evidence concerning his recreational activities of shooting and playing golf.

9. The applicant informed Associate Professor Wren that he had ceased shooting in approximately 2015. He gave evidence he engaged in shotgun shooting, usually clay targets. An examination of the subpoenaed records from Dr D’Cunha revealed that the applicant could “day shoot” in the year 2020. The applicant acknowledged that when he used a shotgun, the recoil affected his lower back, left rotator cuff and elbows; or as he put it, they are the regions that it “goes through”. He acknowledged that a shotgun weighs almost 9 pounds. Further, he stated he was trying to return to competition shooting. He is shooting once a month, approximately 25 targets. His explanation for the apparent discrepancy between what he told Associate Professor Wren and what was reported by Dr D’Cunha, was that he could not engage in competition shooting and had stopped that pursuit, but not shooting altogether. Once again, it is a considerable shift or inconsistency in the evidence concerned.

10. Although it was not explored in cross-examination, several observations should also be made about the applicant’s evidence concerning the use of a shotgun. If a shotgun weighs 9 pounds, as the applicant gave evidence, that is the equivalent of 4.082 kgs. The applicant told Associate Professor Wren that he could not sustain grasp activity for long periods of time. He also told him that he estimated carrying a shopping bag of 3kg to 4kg with an elbow straight would be limited to 3 to 4 minutes because of pain, and if he attempts to lift his elbow inflection, such as to place the shopping bag or other items onto a surface, that he tends to drop them from his grasp. He also told Associate Professor Wren that he could not comfortably hold the phone to his ear for anything more than a few minutes without it causing significant pain. It seems that handling a shotgun would pose significant difficulties for him, both in terms of its weight and the necessity to flex his elbows to fire the weapon. That is in addition to the possible effects that the recoil of the weapon, when fired, would have upon his elbows and other joints.

11. With respect to playing golf, there was a reference to him swinging a golf club and playing the game in the records of Dr D’Cunha in 2020.[11] This reference is inconsistent with what the applicant told Associate Professor Wren, which was that he stopped playing golf in 2012. In the witness box, the applicant sought to qualify this inconsistency by saying that he had tried to continue with golf, but due to his condition it got harder and harder. He stated that he is now a Level 3 rules official and that he was trying to remain connected to the sport but in different ways. This explanation, unfortunately, does not accurately explain the inconsistency between what he told Associate Professor Wren and what is revealed in the records of Dr D’Cunha and the references to golf in 2020. This is also of concern to the Tribunal with respect to the reliability of the account that the applicant has given.

    [11] The records that were summoned from Dr D’Cunha at pages 26 and 193 are referred to.

12. By reason of the foregoing matters, the Tribunal finds that, on the preponderance of the evidence, if the applicant suffered from the condition from which he now complains when he was in the Army, he would have reported it as soon as reasonably practicable after it occurred in 1996 or 1997, and at any time thereafter when the symptoms of such a condition manifested themselves. Therefore, the Tribunal can only conclude that the applicant did not report this condition during his period of Army service as he was not suffering any effects as alleged. It is a reason why the Tribunal concludes that the condition was not contributed to, to a significant degree, by the applicant’s employment with the Commonwealth.

13. With respect to the medical evidence, the Tribunal prefers the evidence of Associate Professor Wren over the report of Associate Professor Richardson. It does so for several reasons.

14. Associate Professor Richardson did not give evidence before the Tribunal at the hearing of this application. Therefore, his opinion could not be tested by way of cross-examination, and the Tribunal did not have the opportunity to observe him, as it normally would when a witness gives oral evidence.

15. Another reason the Tribunal prefers Associate Professor Wren’s opinion over Associate Professor Richardson’s is because of the comparatively scant nature of Associate Professor Richardson’s report of 22 November 2021. Associate Professor Wren recorded a detailed history and symptomology, together with an onset of symptoms and the sequence of events from the applicant. Additionally, not only in his two reports but also in his evidence from the witness box, he condescended to considerable detail as to why he reached the conclusions and expressed the opinions that he did. He laid a factual platform, or foundation and applied those facts to the expertise that he unquestionably has in the specialty concerned. Unfortunately, Associate Professor Richardson does not lay an evidentiary platform prior to expressing the opinion that he does in his critical report of 22 November 2021. What he does is identify the complaint from which he says the applicant suffers and then expresses an opinion that the condition is significantly related to the rigours of infantry and Special Forces service.

16. Additionally, Associate Professor Richardson did not have the benefit of an MRI scan as did Associate Professor Wren. This is a critical distinction between the positions of the two specialists. It will be recalled that Associate Professor Wren was furnished with a copy of the MRI scan, of the applicant’s elbow. Upon an examination of that MRI scan, he stated that it completely excluded the presence of the applicant’s condition. There is no opinion from Associate Professor Richardson with respect to the MRI scan and whether or not it excludes the presence of the claimed condition. Therefore, Associate Professor Wren’s opinion with respect to what the MRI scan reveals remains unchallenged. In the absence of any challenge to that evidence, there seems to the Tribunal no reason not to accept it. This is another reason why Associate Professor Wren’s opinion is preferred.

17. A further reason why Associate Professor Wren’s evidence is preferred is that he also expressed an opinion with respect to Associate Professor Richardson’s report and explained why he disagreed. He disagreed on several grounds. There was the benefit of the examination of the MRI scan, which he opined completely excluded the presence of the claimed condition. He also rejected Associate Professor Richardson’s contention that it was clear that the condition was a long-standing condition. He did so because the first medical documentation of an elbow problem was approximately 19 years after the applicant’s leaving military service. It was then opined that even if there was a diagnosable condition 19 years after military service, (which he disputed), the historical claim of onset of symptoms 19 years earlier, without any contemporaneous record of presentation for symptoms or treatment over a period of almost 2 decades should be considered “extraordinarily unclear” rather than “clear” in terms of interpretation of historical attribution of the problem to previous events several decades earlier. The Tribunal should also observe that Associate Professor Richardson expressed the opinion that the applicant’s condition has been a long-standing one. It seems remarkable that if the condition had been as long-standing as is contended, that a period of approximately 19 years elapsed where the applicant did not seek any medical treatment or attention for it. It is a reason why the Tribunal cannot conclude that the claimed condition was contributed to, to a significant degree, by the applicant’s employment with the Commonwealth.

18. Associate Professor Wren also raised the issue of skin calluses over the metacarpal heads of both hands, which he said could only be present with a significant degree of sustained physical activity against resistance. These were the clinical features shown of regular, recent and quite forceful use of both upper limbs. He observed this was completely contrary to the history provided to him by the applicant. This factor was not considered by, or able to be put to, Associate Professor Richardson to explain and/or express an opinion about. It is a rational explanation for any condition from which the applicant suffers. Therefore, this evidence and the opinion expressed relying upon it by Associate Professor Wren remains unchallenged. The Tribunal sees no reason not to accept it. It is a further reason why it can be concluded that the applicant’s condition has not been contributed to, to a significant degree, by his employment with the Commonwealth.

    CONCLUSION AND DECISION

19. By reason of the foregoing matters, the Tribunal concludes that the condition has not been contributed to, to a significant degree, by the applicant’s employment with the Commonwealth.

20. Therefore, the Tribunal affirms the reviewable decision.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

......[sgd].............................................

Associate

Dated: 21 December 2022

Date of hearing:

17 August 2022

Applicant:

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Shane O’Bryan (Self-Represented)

Ms Genevieve Rush

Moray & Agnew Lawyers