QMQK and Military Rehabilitation and Compensation Commission
[2014] AATA 773
•24 October 2014
Division: VETERANS' APPEALS DIVISION File Number: 2013/0315; 2013/0316 Re: QMQK APPLICANT And Military Rehabilitation and Compensation Commission RESPONDENT DECISION Tribunal: Senior Member A K Britton Date: 24 October 2014 Place: Sydney The reviewable decision is affirmed.
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Senior Member A K Britton
CATCHWORDS
COMPENSATION — Military rehabilitation and compensation — Claim for adjustment
disorder and achilles tendinopathy — Whether a service injury or service disease —
Whether the injury/disease is connected with service — Category 2 stressor — Decision
affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004, ss 5; 23(1)(a); 27; 335(3); 336; 337;
339;
Safety, Rehabilitation and Compensation Act 1988, s 14
CASES
Wiegand v Comcare (2002) 72 ALD 795
SECONDARY MATERIALS
Instrument No. 38 of 2008, Statement of Principles concerning adjustment disorder
Instrument No 38 of 2007, Statement of Principles concerning achilles tendinopathy and
bursitis
REASONS FOR DECISION
Senior Member A K Britton
24 October 2014
1. QMQK served in the Australian Army for sixteen days in November 2010. That service
constitutes “peacetime service” and “defence service” for the purpose of the Military
Rehabilitation and Compensation Act 2004 (Cth) (the Act). It is agreed he suffers (or
suffered) from an adjustment disorder and left achilles tendonitis. He seeks review of a decision made by the Veterans Review Board to refuse his claim for compensation in
Definitions of service injury and service disease for aggravations etc. of signs and person is a service injury or a service disease if:
respect of both conditions. QMQK’s entitlement to compensation under the Act turns on
whether one or both of the claimed condition is a “service injury” or “service disease”.
Statutory framework
2. The Commission must accept liability for an injury sustained, or a disease contracted, by a
person if, among other things, that injury or disease is a “service injury” or “service
disease” (s 23(1) of the Act). Section 27 deems an injury or disease to be a service injury
or a service disease if, one or more of the following apply:
(a) the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service; (b) the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member; (c) in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or (ii) the disease would not have been contracted; but for:
(iii) the person having rendered defence service while a member; or (iv) changes in the person's environment consequent upon his or her having rendered defence service while a member; (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;
…
3. Section 30 of the Act covers aggravations of, or material contributions to, signs and
symptoms of an injury or disease:
symptoms
(a) the injury or disease:
(iii)
was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(iv) 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
…
4. In the opinion of the Commission, a sign or symptom of 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. “Injury” is defined to mean any physical or mental injury (including the
recurrence of a physical or mental injury) but does not include a disease or the
aggravation of a physical or mental injury (s 5 of the Act).
5. “Disease” is defined to mean any physical or mental ailment, disorder, defect or morbid
condition (whether of sudden onset or gradual development); or the recurrence of such an
ailment, disorder, defect or morbid condition, but does not include:
(b) the aggravation of such an ailment, disorder, defect or morbid condition; or (c)
a temporary departure from the normal physiological state, or from the accepted ranges of physiological or biochemical measures, that results from normal physiological stress or the temporary effect of extraneous agents.
Standard of proof
6. Neither party bears the onus of proving any matter that is, or might be, relevant to
determining QMQK’s claim (s 337 of the Act). The Tribunal is not entitled to presume that
an injury sustained, or a disease contracted, by QMQK is a “service injury” or “service
disease” or that QMQK is entitled to be granted compensation (s 336 of the Act).
7. As QMQK’s service constitutes “peacetime service” or “defence service” the question of
whether either claimed condition constitutes a service injury or service disease must be
assessed by applying the “reasonable satisfaction” standard of proof set out in s 335(3),
as affected by s 339 of the Act. Section 335(3) provides:
(3)
the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.
Note: This subsection, to the extent that it relates to subsections 23(1) and
24(1), is affected by section 339.
8. Section 339 relevantly provides:
Reasonable 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.
Note: This subsection, to the extent that it relates to subsections 23(1) and
24(1), is affected by section 339.
Statement of Principles
9. The parties agree that the Repatriation Medical Authority has determined Statements of
Principles (SoPs) for both claimed conditions. QMQK relies on Instrument No. 38 of 2008,
Statement of Principles concerning adjustment disorder (the AD SoP) and Instrument No
38 of 2007, Statement of Principles concerning achilles tendinopathy and bursitis (the
Tedinopathy SoP).
CLAIM FOR ADJUSTMENT DISORDER
10. QMQK’s adjustment disorder will constitute a “service disease” if:
(a) the material before the Tribunal raises a connection between that disorder and some particular defence service rendered by QMQK; and
(b) the material and the AD SoP, uphold the contention that QMQK’s adjustment disorder is, on the balance of probabilities, connected with his service.
QMQK’s account of period spent at Kapooka
11. QMQK served in the Australian Regular Army for 16 days, from 2 November 2010 to
17 November 2010. Throughout that period he wore the rank of “recruit” and was based at
the Army Recruit Training Centre at Kapooka, NSW.
12. In a statement prepared for these proceedings QMQK stated that on the day he arrived at
Kapooka, he was in a large group of recruits going down stairs when he was pushed from
behind and felt a sharp pain in his left ankle. He said he had trouble standing and knew he
had damaged himself.
13. He stated that he reported the incident to a corporal who appeared upset with him and
told him to continue with the training. He stated that he kept going but the ankle was
“really hurting”.
14. According to QMQK the next day he attended the Regimental Aid Post (RAP), a medical
centre on base and was given a few days’ restrictions. He stated that he continued
training on that day including “PT”, running, gym work and field exercises. He said his
ankle continued to cause him difficulties and that night he approached a corporal who
refused his request for permission to go to the RAP. According to QMQK the corporal
swore at him and told him to go to bed.
15. He said the next day his ankle was still troubling him and he again went to the RAP. His
foot was raised and put in ice for 20 minutes and he was given anti-inflammatory
medication and Voltaren cream. He said he returned that afternoon to “normal training”
and his ankle was still very painful. He said he tried to complain to the corporals but they
ignored him, swore at him or told him to hurry.
16. He wrote that he continued training for the next couple of days but the abuse from the
corporals continued. Three or four called him “melanoma”. He said while the corporals
picked on everyone to some extent, they seemed to single out the three in the group who
were not “white Australians” — himself, a New Zealander of Samoan descent and an
Englishman.
17. He stated that over the next couple of days he became the subject of abuse by some of
his fellow recruits. He believed the reason they targeted him was because he slowed
down the group. He said in the showers recruits threatened to bash him or damage his
equipment. He said a couple of times they messed up his room and he was “blasted”
during room inspection.
18. He claimed that he was refused permission to contact his mother who was ill. He said he
telephoned to check on her on his third day at Kapooka and was disciplined for using the
phone.
19. He said after a few more days of basic training and ongoing abuse, his ankle was still
bothering him and he wasn’t sleeping or eating. He was sent to the ‘hospital’ (apparently,
the Kapooka Health Centre) but says he received no treatment for his ankle and stopped
taking the anti-inflammatory medication because it made him sick. He spent several days
in the hospital, staying in bed for most of the day.
20. QMQK stated he was then sent to the Discharge Platoon, a small barrack of about 15
recruits. He says he did not receive any treatment for his ankle during this time. QMQK
says he was sent to a psychologist who told him he should have remained in training and
that he would be medically discharged on psychological grounds, not due to his ankle. He
says this news made him very upset.
Medical records relating to period spent at Kapooka
21. Tendered in these proceedings was a copy of QMQK’s records held by the Army,
including medical records created during his time at Kapooka. They record that on
3 November 2010 QMQK attended the RAP for an “achilles tendon problem”. The
following day he returned to the RAP and his condition was recorded to be “mild”.
22. On 11 November 2010 QMQK attended the Kapooka Health Centre. The consulting
medical officer recorded:
Presented week 2 after receiving citation for trying to use a phone. Crying, emotionally upset. Stated his mother was unwell, lived alone, and he was worried
about her. Not sleeping, not eating ‘feeling like crap’. Wanting to discharge.
Doesn’t feel he is strong enough to continue. Says he could not cope with return to
lines to go through ROR process. I consider any attempt to return him to training
would result in significant anxiety, and would not be in the member’s best interest,
or then best interest for Defence. He is considered low risk. Could you please
assess and advise re suitability.
23. QMQK was referred for psychological assessment. In a report dated 12 November 2010,
psychologist Captain Donna Merkx wrote:
PTE(R) QMQK reported no motivation to continue training and anxiety in regards to returning to training at this time. He stated he did not want to go back to training and that he just wanted to go home. He indicated that he had attempted to submit an ROR, however, this had not been actioned. When this was explored it appeared that he did not follow through on his request to the staff, and that he had not taken reasonable actions to have the ROR process commenced.
Mbr stated he believed his mother was ill and he was concerned for her wellbeing, though further investigation indicated he had limited evidence to support this concern. He reported that she may have minor cold/flu symptoms when he commenced training, and that when he questioned her during phone calls she
reported that her health was sound, though the mbr stated he ‘knew’ she was ill,
but just not telling him. Mbr also reported five siblings that lived in a neighbouring suburb who were available to render assistance to his mother should she require it, however, he reported that he thought this was not sufficient as they all worked during the day.
Mbr also indicated poor sleep, reduced appetite, increased agitation, and
distress due to a number of incidents for which he had received negative
performance feedback. He stated that he thought he would be charged for these incidents and that he thought it likely he would be issued a period of detention and a criminal record. When explored, this appeared to be a minor indiscretion and no action had been taken against the mbr at this stage, and would likely only result in an infringement if any action was to be taken at all.
Mbr reported that he was experiencing memories and dreams of previous
stressful events including the sudden death of a friend 5 years ago and his
parents divorce [sic] when he was a child. Mbr indicated nil suicide or self harm ideation and stated he would inform a staff member if such thoughts occurred, and is therefore considered low risk at this time.
24. CAPT Merkx wrote that QMQK appeared to be experiencing a “situational crisis”. In her
opinion QMQK had “marginal coping abilities” and displayed “insufficient resilience”. She
recommended discharge on the grounds he was not suited to be a soldier.
Medical consultations in the period between discharge and making claim for compensation
25. Ten days after discharge QMQK consulted his regular GP, Dr Brown.[1] In a note of that
consultation Dr Brown recorded that: QMQK reported flashbacks and nightmares; his
weight had dropped from 91 to 86 kilograms; he was not allowed to give any details on
account of “confidentiality issues”; he was thinking of seeing a psychologist; he requested
and was given a script for sleeping tablets.
[1]
26. QMQK saw Dr Brown again on 30 December 2010. The record of that consultation
contains no mention of psychological problem or symptoms. QMQK did not see Dr Brown
again until after he made a claim for his compensation in respect of his adjustment
disorder in August 2011.
27. During this period QMQK also attended a medical practice in Ryde, Sydney, on four
occasions. The notes of a consultation held in January 2011 record “mild ankle strain” and
QMQK needing a “clearance certificate”. The notes of a second consultation on
1 March 2011 record QMQK reporting feeling depressed and being prescribed anti-
depressants:
Has ED. Friend killed two years ago in MBA, rel’ship breakdown. Army accident.
Can get back to Army eventually.
28. The notes of a consultation in March 2011 refer to QMQK feeling depressed, not wanting
to use medication and having “relationship problems”. They contain no mention of
QMQK’s time in the Army. The records of a fourth consultation held a week later record
that QMQK has commenced taking anti-depressants; felt better; and was “worr[ied] about
bipolar as told by his friend it’s common in the Army”.
29. Since discharge QMQK has not consulted a psychologist or psychiatrist for treatment.
Claim for compensation
30. In a letter dated 24 August 2011 accompanying his claim for compensation QMQK wrote
that throughout his two weeks at Kapooka he “suffered humiliation, bullying and general
contempt by those who were supposed to be teaching me”. He wrote:
I was medically discharged from the ADF on the 16th Nov 2010, at the time I was told it was because of my achilles tendon but since reading my discharge documents I realise I was medically discharged on psychiatric grounds.
I am unable to seek psychiatric treatment at the moment because of cost but my
GP Dr Brown is assisting me.
31. In the accompanying claim in answer to the question “How do you believe your service
caused … your [emotional problems]”, QMQK wrote:
Bullying, victimisation whilst at Kapooka.
Medical opinion
32. Since making his claim for compensation QMQK has been assessed by psychiatrists
Dr Barrett (in October 2011), Dr Dinnen (in June 2013) and Dr Champion (in
October 2013). Reports of their respective assessments were tendered in these
proceedings. In addition, Drs Dinnen and Champion gave oral evidence.
33. The experts agree that around the time of discharge QMQK was suffering an adjustment
disorder but disagree about the condition’s duration. In Dr Barrett’s opinion when she saw
QMQK in October 2011 he was suffering an adjustment disorder. Dr Dinnen believed that
the condition persisted nearly two years later. Dr Champion is alone among the experts to
believe that the condition was short-lived. In his opinion QMQK probably recovered within
a few month of discharge.
34. While some differences, the histories recorded by the experts about QMQK’s period at
Kapooka, are broadly consistent. The following is a summary taken from Dr Barrett’s
report dated 6 October 2011. She wrote that QMQK reported that he:
was subjected to a number of incidents of “bullying” at the base and having a weapon thrown at his feet during weapon training, verbal and physical fighting and verbal abuse was called a “wog” was ordered to go to bed without medication and sworn at and given a citation for using his mobile phone to contact his mother who was unwell did not get on with anyone in his section was discriminated against on the basis of his “background” was “not happy the whole time on base”. Dr Barrett recorded that QMQK stated that he had spent years trying to get into the Army
and this experience had been a “major disappointment”. She recorded that QMQK stated
that his greatest stressor was persisting pain, which affects his ability to work and
exercise, which had been a big part of his life.
Medical Opinion on causation
35. The experts agree that a significant factor contributing to QMQK’s condition was his
disappointment at being unable to pursue his long-term goal of entering the Army.
Drs Barrett and Dinnen considered that the alleged mistreatment, bullying, harassment
and abuse together with the pain and associated limitations relating to his foot injury, also
contributed to QMQK’s adjustment disorder. In contrast, Dr Champion was of the opinion
that QMQK’s condition was the result of a pre-existing vulnerability to separation and a
lack of resilience. In his opinion QMQK’s claim of being bullied and harassed while at
Kapooka, reflected perceptions associated with his feelings of failure to achieve his
hoped-for goal.
Does the material and the AD SoP uphold the contention that QMQK’s adjustment
disorder is connected with his service?
36. For current purposes I will assume but not decide that the available material raises a
connection between QMQK’s adjustment disorder and his defence service, and proceed
to consider whether the AD SoP upholds the contention that QMQK’s adjustment disorder,
on the balance of probabilities, is connected with his service.
37. Under the AD SoP at least one of the factors listed in clause 6 must exist before it can be
said, on the balance of probabilities, that QMQK’s adjustment disorder is connected with
his service. QMQK relies on cl. 6(d) which provides:
experiencing a category 2 stressor within the three months before the clinical onset
of adjustment disorder; or
…
38. A “category 2 stressor” is defined by cl 9 of the AD SoP to mean:
one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel ongoing distress, concern or worry: [emphasis added]
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or
medical or psychiatric illness;…
(c) having concerns in the work or school environment including: ongoing disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
…
Did QMQK experience a category 2 stressor within the three months before the clinical onset of adjustment disorder?
39. Whether QMQK experienced a category 2 stressor turns on whether he:
experienced one or more of the “negative life events” described in paragraphs (a) and/or (c) above during his period of service, and the effects of those negative life events are chronic in nature and cause QMQK to feel ongoing distress, concern or worry. Did QMQK experience any of the “negative life events” within the meaning of
paragragh (a)?
40. QMQK submits that he satisfies the first element of paragraph (a) of the definition of a
category 2 stressor — being socially isolated and unable to maintain friendships — on
the basis of being unable to make or develop friendships with fellow recruits, due to the
pain he experienced after injuring his foot at Kapooka.
41. Read in context it is apparent the word “maintain” in paragraph (a) is used to mean an
inability to continue or retain friendships, not an inability to develop or make new
friendships. That is consistent with the definition offered by the Macquarie Dictionary: “to keep in existence or continuance; preserve; retain”. There is no evidence of QMQK being
unable to maintain pre-existing friendships, and nor do I understand that to be suggested.
Nor is there evidence of QMQK being unable to maintain friendships made at Kapooka.
42. I am not reasonably satisfied that QMQK suffered a “negative life event” within the
meaning of paragraph (a) of the definition of a category 2 stressor.
Did QMQK experience any of the “negative life events” within the meaning of
paragraph (c)?
43. QMQK contends that while at Kapooka he had the following concerns:
ongoing disharmony with fellow work colleagues perceived lack of social support within the work or school environment experiencing bullying in the workplace. 44. As pointed out by the Commission the first record of these alleged stressors appears in
QMQK’s claim for compensation made 10 months after he left Kapooka. The history he
gave to Dr Barrett the following month is the first detailed account of the alleged
mistreatment and abuse.
45. I agree with Dr Champion that it is highly relevant that there is no record of QMQK
reporting being bullied, harassed or abused after 4 November 2010, suffering problems
with his foot in any of the available medical records created during the period he spent at
Kapooka, including the detailed pre-discharge psychological report. When questioned in
these proceedings about the absence of any reference to mistreatment in those records,
QMQK claimed, apparently for the first time, that he reported being mistreated to “the
nurses”.
46. In these proceedings Dr Dinnen suggested that the most likely explanation for the
absence of any reference to bullying, harassment or foot pain in CAPT Merkx’s report was
because the primary focus of her assessment was QMQK’s suitability for service and not
the cause of his apparent distress. I have great respect for Dr Dinnen but am unable to
accept that hypothesis. A reading of CAPT Merkx’s report indicates that she recorded
matters that were apparently troubling QMQK including: being separated from his mother
at a time he thought she might be unwell; being concerned that his siblings might be unable to provide his mother with adequate support; apprehending that he might be
disciplined for a “minor indiscretion” [apparently using a mobile phone to contact his
mother]; experiencing memories and dreams of previous stressful events including the
death of his friends and his parents’ divorce.
47. But even if Dr Dinnen’s hypothesis is accepted, it does not explain the absence of any
reference to the alleged mistreatment and bullying in the records made by the medical
practitioners QMQK consulted in the period after discharge and before making a claim for
compensation. Those records reveal that QMQK’s psychological condition was discussed
during four of the six assessments held throughout that period. They record QMQK
reporting various stressors — relationship problems of an intimate nature and the death of
a friend — but none contain any direct or indirect reference to the alleged mistreatment.
While the record of the consultation on 18 May 2011 refers to the Army — “worry about
bipolar as told by his friend that it’s common in the Army” — it makes no mention of the
alleged bullying and mistreatment.
48. In these proceedings QMQK gave a vague and inexact account of the period he spent at
Kapooka. That account conflicts in part with the accounts he gave to medical practitioners.
For example, in the statement prepared for these proceedings, QMQK claimed he spent
“a few days in hospital” (of which there is no record) before being sent to the discharge
platoon. In contrast, he told Dr Champion he was in hospital for a week and told
Dr Dinnen he was there for four days. On questioning, he could not recall how long he
spent in training, in hospital (if at all) or the discharge platoon and apart from the first
occasion, attending for medical treatment. In contrast, the statement he prepared for
these proceedings three months earlier contained a reasonably clear, if not exact, account
of these events, especially in relation to the first part of his time at Kapooka.
49. In addition, the evidence given by QMQK was littered with examples of him being unable
to remember significant events, such as being hospitalised in 2003 following a report of
self-harm and seeking treatment for depression following a relationship breakdown, six
years later. In addition he had no recollection of numerous matters of lesser significance,
such as, being assessed by Dr Dinnen or, shortly after discharge, seeking medical
clearance to work as a courier.
50. Human memory is fallible and notoriously unreliable. It fades over time. That QMQK gave
conflicting accounts and now has only a vague recollection of the events that occurred at
Kapooka, does not establish that those events did not occur. But coupled with the
absence of any contemporaneous or complaint evidence I am left with doubts about the
reliability of his accounts concerning his experiences at Kapooka. On the available
evidence I am not reasonably satisfied that, as alleged, QMQK was subjected to bullying
and harassment and other forms of mistreatment during his period at Kapooka. Nor am I
am reasonably satisfied that he experienced ongoing disharmony with colleagues while at
Kapooka. Nor for reasons addressed in greater detail below am I reasonably satisfied that
he suffered ongoing significant pain, or sought treatment for his foot condition after his
attendance at the RAP on 4 November 2010.
51. With respect to the contention that QMQK perceives he was not adequately supported at
Kapooka, I understand that the basis of this perception is said to be the denial of proper
treatment and being subject to bullying and harassment by the corporals and colleagues.
While in my opinion, a flawed perception will suffice to satisfy this element of the definition
in paragraph (c), nonetheless there needs to be some probative evidence that the events
said to give rise to the perception did occur. For the reasons given above I cannot be
reasonably satisfied that they did. (See the comments of von Doussa J (at 797[31]) in
Wiegand v Comcare (2002) 72 ALD 795 commenting on the operation of s 14 of the
Safety, Rehabilitation and Compensation Act 1988 (Cth).
Conclusion
52. I am not reasonably satisfied that QMQK suffered a category 2 stressor within the
meaning of paragraph (c) of the definition of a category 2 stressor. It follows that the AD
SoP does not uphold the contention that QMQK’s adjustment disorder is connected with
his service.
CLAIM FOR LEFT ACHILLES TENDONITIS
53. It is agreed that QMQK suffers from left achilles tendonitis and was suffering from that
condition while at Kapooka. In deciding whether that condition constitutes a service injury
or service disease I will adopt the approach taken in relation to QMQK’s claim for
adjustment disorder and assume but not decide that the available material raises a
connection between that disorder and QMQK’s service and proceed to assess whether
the relevant SoP upholds that contention.
Does the material and the Tendonitis SoP uphold the contention that QMQK’s left
achilles tendonitis is connected with his service?
54. Under the Tendonitis SoP at least one of the factors listed in cl 6 must exist before it can
be said that, on the balance of probabilities, QMQK’s achilles tendonitis is connected with
his service. QMQK relies on factor 6(i):
inability to obtain appropriate clinical management for achilles tendinopathy or
bursitis.
55. This factor applies only to material contribution to, or aggravation of, achilles tendinopathy
where the person’s achilles tendinopathy was suffered or contracted before or during (but
not arising out of) the person's relevant service (cl 7 of the Tendonitis SoP).
56. Whether the Tendonitis SoP upholds the contention that QMQK’s achilles tendinopathy
was connected to service turns on:
whether he was unable to obtain appropriate clinical management for the condition while at Kapooka, and if so, whether that inability materially contributed to, or aggravated his condition. Account of injury and treatment
57. For convenience I summarise below the account, given by QMQK in his statement, of
injuring his foot at Kapooka (see also [11] to [20] above):
on the day he arrived at Kapooka he injured his left ankle while descending a flight of stairs he reported the incident to a corporal and was told to continue training he kept going but his foot “was really hurting” he attended the RAP the day after the injury and was given a few days on restrictions. He continued training that day: PT, running, gym work his ankle was causing him problems and he approached a corporal who refused his request to go the RAP the next morning his ankle was still troubling him and he returned to the RAP. His foot was put in ice and given anti-inflammatory medication and cream for pain relief he continued training that afternoon and “for the next few days” his ankle continued to trouble him and he was sent to hospital where he received no treatment. Medical opinion
58. Orthopaedic surgeons Dr James Bodel and Dr Rhys Gray assessed QMQK in the context
of his claim for compensation. Both prepared reports for these proceedings and gave
evidence concurrently.
59. They agree that at the time of their respective assessments — June 2011 (Dr Gray) and
August 2013 (Dr Bodel) —QMQK was suffering from achilles tendinopathy and bursitis as
those terms are defined in the Tendonitis SoP.
60. Each was of the opinion that these conditions are generally associated with overuse and
not direct trauma. They agreed that at the time of the alleged accident — falling down
stairs and being “run over” by other recruits — there was probably some “sub-clinical”
pathology.
61. QMQK did not disclose to either Dr Bodel or Dr Gray that he had received physiotherapy
treatment for “left minor tendinopathy strain” about two weeks prior to commencing at
Kapooka, as revealed in records produced in these proceedings. Drs Bodel and Gray
concluded that the evidence of that treatment strengthened their assessment that
QMQK’s condition was probably of a chronic nature when he enlisted. They agreed that
the symptoms of the condition were probably exacerbated by the fall said to have taken
place on 2 November 2010.
62. The records of QMQK’s first attendance at the RAP on 3 November 2010 describe his
injury as a “new injury”. The treater recorded a provisional diagnosis of “tendonitis” and
under the heading “provisional severity assessment” wrote “no further treatment required”.
Under the heading “temporary restriction” was written “P/T sport restriction only … total
number of new days on restrictions: 3”.
63. The record of the consultation on 4 November 2010 states:
QMQK was seen by a doctor/medical officer who made a diagnosis of “sprain” the doctor/medical officer gave a provisional severity assessment of “mild (1 to 3 further treatments needed)” the doctor/medical officer believed the likely outcome to be “incapacity less than 5 days” the doctor/medical officer recommended temporary restrictions: “P/T sport restriction only … total number of new days on restrictions: 2”. 64. Drs Bodel and Gray were of the opinion, based on the history given by QMQK and the
treatment records, that the treatment given to QMQK on 3 and 4 November 2010 was
appropriate. Dr Bodel was of the opinion that if, as claimed, QMQK experienced
significant ongoing symptoms after the second consultation, a review would have been
warranted. In his opinion a review would also have been warranted if, as claimed, the
symptoms experienced by QMQK worsened.
65. Dr Bodel did not agree with the proposition that the record of the specialist referral made
on 11 November 2010, which made no mention of QMQK suffering ongoing problems with
his left foot, indicated that QMQK’s condition had resolved. In his opinion given that that
referral was for a psychiatric assessment, the absence of any mention of foot problems
was inconclusive. Dr Gray, on the other hand, was of the opinion that given the nature of
the records it would be expected the referral would incorporate QMQK’s account of any
physical symptoms that were bothering him at the time.
66. The experts agree that if, as claimed, QMQK continued to suffer ongoing pain after the
second treatment and did not receive any further treatment, at best it might have extended
the period QMQK experienced pain. They agree it was unlikely to have caused any
changes in pathology.
Was there an inability to obtain appropriate clinical management for the condition?
67. The experts agree that the treatment given to QMQK when he attended the RAP on 3 and
4 November 2010 was appropriate. Dr Gray was of the opinion that the condition was
relatively mild and a further review was unnecessary. Dr Bodel agreed that the condition
was mild but nonetheless was of the opinion that a further review would have been
prudent before QMQK returned to full duties, or, if his symptoms worsened.
68. When questioned in these proceedings QMQK said he could not recall returning to the
RAP on a second time. As mentioned in oral evidence he gave conflicting accounts about
the period he remained in training after receiving treatment. There is no independent or
complaint evidence to support his claim that he reported that he was experiencing
significant ongoing pain and prevented from seeking medical treatment.
69. Dr Bodel’s opinion that it would have been prudent for QMQK’s foot to be reviewed after
the second consultation rests on the assumption that at some point QMQK returned to full
duties and/or his symptoms worsened. On the available evidence I could not be
reasonably satisfied of either factual assumption. Nor could I be reasonably satisfied that
as claimed QMQK was effectively prevented from seeking further treatment for his foot
after 4 November 2010.
CONCLUSION
70. I am not reasonably satisfied that QMQK was unable to obtain appropriate clinical
management for his achilles tendonitis. It follows that the Tendonitis SoP does not uphold
the contention that that condition is connected with QMQK’s service.
Decision
71. Not being satisfied that either the AD or Tendonitis SoPs uphold the contention that
QMQK’s adjustment disorder or achilles tendonitis is connected with his service, the
decision to refuse his claim for compensation under the Act, must be affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior
Member A K Britton
....................................[SGD]....................................
Associate
Dated: 24 October 2014
Date(s) of hearing: 10 and 11 July 2014 Date final submissions received: 4 September 2014 Counsel for the Applicant: Clare Mudge Solicitors for the Applicant: Legal Aid NSW Counsel for the Respondent: Matthew Hawker Solicitors for the Respondent: Sparke Helmore ‘Dr Brown’ is a pseudonym.
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