Pook and Military Rehabilitation and Compensation Commission
[2008] AATA 100
•8 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 100
ADMINISTRATIVE APPEALS TRIBUNAL
No Q2007/785
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN POOK Applicant
And
MILITARY REHABILITATION and COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member
Dr G Maynard, MemberDate8 February 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
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RG Kenny
Member
CATCHWORDS
MILITARY COMPENSATION – Morton’s neuroma developed during service with RAAF – constitutional condition unrelated to RAAF service – medical treatment in the form of surgical removal of neuroma at Commonwealth expense – no consequential injury as a result of medical treatment - decision affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 6, 6A, 14
Comcare v Houghton (2003) 73 ALD 676; 37 AAR 138
REASONS FOR DECISION
8 February 2008 Mr RG Kenny, Member
Dr G Maynard Member
Background
1. John Pook was serving in the Royal Australian Air Force (RAAF) when, on 31 August 1998, he underwent surgery for what was described as Morton’s neuroma. Pain associated with the condition has not resolved and, on 26 July 2006, he lodged a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for compensation for his “right foot problem”. On 24 October 2006, a delegate of the Military Rehabilitation and Compensation Commission (MRCC) rejected liability. That decision was affirmed by another delegate of the MRCC on 29 January 2007. Mr Pook now seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Issues and Legislation
2. Section 6 of the Act sets out circumstances in which an injury might be treated as having arisen out of or in the course of employment. At the hearing, reference was also made to s 6A of the Act. This extends to an injury which was an unintended consequence of medical treatment provided by the Commonwealth. In the event that a causal association is established under either of those provisions, s 14 of the Act provides that the respondent is liable to pay compensation in respect to an injury suffered by an employee if the injury results in incapacity for work or in impairment. The term “injury” is defined in sub-section 4(1) of the Act to include a disease and, in turn, that term is defined to include any ailment or aggravation of any such ailment contributed to in a material degree by the persons’ employment. As noted below, particular considerations arise when the term “injury” is considered in the context of s 6A of the Act. The issue for determination is whether or not Mr Pook has a foot injury which falls within either s 6 or 6A of the Act and which will give rise to compensation under s 14 of the Act.
Mr Pook’s Evidence
3. Mr Pook enlisted in the Australian Regular Army in 1981. On 10 November 1985, he enlisted in the RAAF from which he was discharged on 7 February 1999. He contends that he developed Morton’s neuroma as a result of his wearing tight-fitting boots during his RAAF service. He recalled that, on leaving the RAAF, he was fitted with boots from civilian sources which were significantly more comfortable than those which had been issued to him during his military service. Mr Pook underwent surgery on 31 August 1998 for removal of a Morton’s neuroma but found that there were no changes to the symptoms he experienced. In support of his contentions, he relied upon the most recent report of Dr. Winstanley. He conceded that he had provided a letter to Dr. Peter Winstanley in which he made specific reference to his wearing of tight-fitting boots.
4. Mr Pook was critical of the report prepared by Dr. Terence Saxby on the basis that he had conducted a very brief examination, declined to provide him with sufficient information about his condition and because Dr. Saxby appeared to be vague and uncertain in the conclusions that he reached and unable to reach the level of 100% certainty in his opinions. Mr Pook said that Dr. Saxby had told him that further surgery would not be of assistance to him and that the problem with his foot appeared to be resultant from the severance of a ligament during the surgery in 1998.
5. Mr Pook conceded that his service medical records did not include references to his complaint about tight-fitting boots. He was uncertain as to whether he had specifically made this complaint to the various medical practitioners he had seen during his service years but thought that it was likely that he did and that incomplete record-keeping by those practitioners was responsible for the absence of such reference. He said that he not had the benefit of seeing, at the time, what notations were made by those practitioners and, therefore, did not have an opportunity to make relevant amendments.
Medical Evidence
6. The medical evidence in this case comprised reports and oral evidence from orthopaedic surgeons Dr Peter Winstanley and Dr Terence Saxby and from rheumatologist Dr Phillip Vecchio. Also available were reports from orthopaedic surgeon Dr Jeff Peereboom and Mr Pook’s service medical records which contain notes by orthopaedic surgeon Dr Scott Fairbairn, who conducted a surgical procedure on Mr Pook’s right foot on 31 August 1998.
Medical Records
7. Mr Pook’s medical records show that he complained of aching in his toes on 2 March 1994 and that he was provided with sorbothane insoles for his boots. He next complained of pain in his right foot on 15 March 2006 and is recorded as providing a 5 week history of pain at that time. A further episode of pain is noted on 17 November 1997 and reference made to its presence over the preceding few months. On 20 November 1997, he was seen by a physiotherapist who took a history of sharp pain in the metatarsal heads for 12 months and difficulty with running, climbing stairs and wearing boots. The use of sorbothane padding was noted. He was subsequently seen by podiatrists one of whom reported, on 15 May 1998, that surgical opinion should be obtained. That report also noted that wide fitting shoes were required to reduce compression. The operation report of Dr Fairbairn, dated 31 August 1998, describes the procedure as excision of “neuroma” and refers to the “excision of nerve and bursa”.
Dr. Winstanley
8. Dr. Winstanley completed reports on 3, 4 and 10 January 2007 and 6 July 2007. In his earlier reports, he was unable to identify any specific condition in Mr Pook’s foot. He confirmed, in his oral evidence, that this was still the case. He described Morton’s neuroma as a condition which might develop from constitutional factors, traumatic causes or intrinsic pressure. As to the last of these, he said that it could be caused by wearing shoes which compressed the toes and, based upon what he was told by Mr Pook, he considered that the wearing of tight-fitting boots was the cause of his Morton’s neuroma. However, he confirmed that he was still in the position where no new specific diagnosis could be given to explain his present symptoms. Dr. Winstanley also accepted that a constant regimen of exercise could result in a temporary aggravations of symptoms associated with Morton’s neuroma, but, that such exercise would not be responsible for causing the underlying condition or permanently aggravating it. His opinion was that, in the absence of causation associated with tight-fitting boots in Mr Pook’s situation, the probable cause of the condition was of a constitutional nature.
Dr Vecchio
9. Dr Vecchio accepted that symptoms of pain were experienced by Mr Pook but he was unable to make any specific diagnosis for Mr Pook’s foot condition. He was not convinced that a Morton’s neuroma had been present prior to surgery and noted that Dr Fairbairn’s notes referred to it in quotation marks at the head of the report and to “nerve and bursa” in the body of the report. He considered that any condition from which Mr Pook suffered was constitutional and would have arisen regardless of the kind of employment he undertook. In reference to the surgical procedure, Dr Vecchio said that some 5 to 10% of such procedures were unsuccessful and resulted in the kinds of ongoing symptoms experienced by Mr Pook. He said that severance of the ligament during surgery could possibly result in ongoing symptoms but that this was not a probable outcome.
Dr Saxby
10. Dr Saxby’s orthopaedic specialty is in disorders of the ankle and foot. In his opinion, Mr Pook suffered from a Morton’s neuroma for which he underwent unsuccessful surgery. This left Mr Pook with his current symptoms which was a recognized complication of the surgical procedure and which occurred in 5 to 10% of excisions. He was unable to recall whether he had advised Mr Pook that there had been severance of a ligament during the surgical procedure but said that a routine component of the surgery which he underwent was such a division of the ligament where the neuroma is located.
11. Dr Saxby described Mr Pook’s condition as constitutional in nature and as not resulting from physical activity or the use of particular footwear. In his opinion, Mr Pook’s neuroma was not caused by aspects of his RAAF service. He also said that it was possible that the Morton’s neuroma which was present during service could be temporarily aggravated in its symptoms by the activities of service life but that this would not advance the underlying condition.
12. Dr Saxby conceded that he had not entered into discussions with Mr Pook during his consultation with him and said that this was because his task was to prepare a report relating to causation and not to give consideration to aspects of treatment of Mr Pook’s condition.
Consideration
Causation: s 6 of the Act
13. Both Dr Saxby and Dr Vecchio were of the opinion that Mr Pook’s Morton’s neuroma was not related to his service per medium of his physical activities or through wearing of his military-issued boots. At its highest, their evidence was that the symptoms of an existing Morton’s neuroma may be temporarily aggravated by such considerations but that this would not advance the seriousness of the underlying condition. Dr. Winstanley’s opinion was that tight-fitting boots could be causally associated with the development of Morton’s neuroma in Mr Pook’s case. He did not come to that conclusion in the reports he completed in January 2007 but did so in July 2007, two days after receiving a letter from Mr Pook which included the following:
I noticed substantial difference between the civilian footwear, and the inferior work boots supplied by the RAAF, which were mandatory to wear during my 13 years+ of full-time RAAF service. The civilian work boots were comfortable to wear. In comparison, the RAAF boots had no internal support, they were very rigid and hard on feet, and were supplied in a size either too big or too small for my actual foot size because the boots were not supplied in half sizes. My recollection is that I was fitted with tight fitting size 9 boots, and size 10 were too loose to wear.
14. In giving his oral evidence, Mr Pook was questioned about the size of his RAAF boots and their degree of tightness. He demonstrated significant reluctance in answering the questions put to him and, although, ultimately, he stated that he was wearing tight size 9 boots, we found his evidence to be unconvincing. Further, on the various occasions when he was seen by medical practitioners from 1994 onward about problems with his feet, no reference is recorded about the wearing of tight boots. On one occasion, a podiatrist, in a report dated 15 May 1998, noted: “wide fitting needed to reduce compression”. There is referenced made to requests for insoles to be supplied even though, in the normal course of events and without other adjustments, these would have the effect of increasing the level of tightness of the boot. Mr Pook gave no evidence of any such adjustments but, rather, was critical of the various reporters on the basis that they might not have taken a full record of what he said. We do not accept his evidence in that regard and we are satisfied that Mr Pook was not required to wear tight-fitting boots for the 13 years of his RAAF service in the manner in which he advised Dr. Winstanley. In his evidence, Dr. Winstanley said that, in the absence of tight-fitting boots, Mr Pook’s Morton’s neuroma was of constitutional origin and unrelated to his service with the RAAF.
15. We are reasonably satisfied that Mr Pook’s foot condition did not arise out of or in the course of his employment with the RAAF in accordance with s 6 of the Act.
Causation: s 6A of the Act
16. Despite our finding that Mr Pook’s Morton’s neuroma did not result from his Commonwealth employment, the obligation to pay compensation will arise if the requirements of s 6A of the Act are met. The first of these is that Mr Pook received medical treatment paid for by the Commonwealth. It is not in dispute and we are satisfied that the surgical procedure conducted by Dr. Fairbairn constituted medical treatment, as that term is defined in s 4 of the Act, paid for by the Commonwealth.
17. In the Federal Court decision Comcare v Houghton (2003) 73 ALD 676; 37 AAR 138, the employee suffered hearing loss after surgical removal of an acoustic neuroma. The Tribunal determined that the hearing loss was an injury for the purposes of s6A of the Act. Lindgren J held that the term “injury”, as it is used in s 6A(2) of the Act, does not take its meaning from the definition of that term in s 4(1) of the Act and referred to the distinction in s 14(1) of the Act between an injury and the impairment which results from the injury. In relation to the term injury, his Honour said (73 ALD 676 at 683):
“The word ‘injury’ has a wide meaning. Hill J considered the meaning of the word as it occurred in the Veterans' Entitlements Act 1986 (Cth) in Repatriation Commission v Brown (1990) 12 AAR 253 at 257-259, and concluded that it signified the suffering of some harm. In that case, his Honour was concerned with the grinding down of two healthy teeth to near the gum line in order to provide the foundation for the fitting of a bridge. Hill J thought that, regarded in isolation, the two healthy teeth might be seen to have been injured by being ground down, but that properly viewed, the grinding down was not harmful but beneficial. Accordingly, his Honour held that the grinding down itself did not constitute an ‘injury’.”
18. Lindgren J held that the hearing loss constituted an impairment, as provided for under s14 of the Act, but not an injury. Whatever constituted the injury which caused the hearing loss had not been identified by the Tribunal. His Honour said that, according to s 6A(2) of the Act, it is the suffering of an injury, rather than any ongoing impairment, which is referred to as the unintended consequence of the medical treatment. He described the scheme of the provision as involving the following:
§there must be medical treatment paid for by the Commonwealth (s 6A(2)(a));
§there must be the unintended consequential suffering of an injury (s 6A(2)(b));
§there must be resultant impairment (s 14(1)).
19. Lindgren J (73 ALD 676 at 684):
As to the second condition, I need only goes so far as to say that in my opinion s 6A(2) does not encompass an injury which winds, and was always nine to be, an unavoidable direct consequence of the medical treatment, albeit one which those administering the treatment did not positively desire, seek or aim to produce.
20. The second is that he suffers an injury which is an unintended consequence of that treatment. In Mr Pook’s case, the medical evidence does not identify any specific injury from which Mr Pook now suffers. Reference was made to the severance of a ligament but, on the evidence of Dr Saxby, we are satisfied that this is routinely the product of surgery for the removal of Morton’s neuroma. In that sense, the severance of the ligament itself cannot be an injury encompassed by s 6A of the Act because, in the words of Lindgren J, (above), it was an unavoidable direct consequence of the medical treatment which he underwent or, in other words, “part and parcel of the operation”: see Comcare v Houghton (73 ALD 676 at 684).
21. While Mr Pook has continued to experience symptoms in his right foot since his operation in 1998, we are reasonably satisfied that, on the basis of the medical evidence available to us, there is no unintended consequential suffering of an injury by him as a result of that operation. This means that the requirements of s 6A of the Act are not met.
Decision
22. The Tribunal affirms the decision under review.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member and Dr G Maynard, Member
Signed: .....................................................................................
E. Young, Research AssociateDate of Hearing 30 January 2008
Date of Decision 8 February 2008
The Applicant was not represented
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Australian Government Solicitor
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