Reeday and Military Rehabilitation and Compensation Commission (Compensation) - [2017] AATA 1320

Reeday and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 1320 (18 August 2017)
Division: Veterans' Appeals Division
File Number: 2015/1380
Re:John Reeday
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:18 August 2017
Place:Perth

The decision under review is affirmed
..............[sgd]..........................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
COMPENSATION – Military Compensation and Rehabilitation Act – defence service – whether applicant suffers or suffered from the claimed conditions of lumbar spondylosis and thoracic spondylosis – date of clinical onset – Statement of Principles No. 63 and No. 65 – whether one of the factors contained in the applicable Statement of Principles exists – whether applicant has established a sufficient connection between the injury and his defence service – decision under review affirmed.
LEGISLATION
Military Rehabilitation and Compensation Act 2004 – sections 6(1)(c) – 23(1)(a) – 27 – 335(3) – 339(3)
CASES
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
SECONDARY MATERIALS
Statement of Principles concerning Thoracic Spondylosis No.65 of 2014
Statement of Principles concerning Lumbar Spondylosis No.63 of 2014
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
18 August 2017
BACKGROUND

This matter requires the Tribunal to determine whether the Military Rehabilitation and Compensation Commission (the “Commission”) is liable under s 23 of the Military Rehabilitation and Compensation Act2004 (the “MRC Act”) in relation to two medical conditions claimed by John Reeday – those being lumbar spondylosis and thoracic spondylosis.
Mr Reeday is 45 years old. He enlisted in the Australian Regular Army Reserve (the “ARA”) on 9 August 2010. He commenced basic training at Kapooka on 6 January 2011 (T47 at 276) and was discharged on 3 September 2014. He was engaged in peacetime service for the period of his enlistment. This is not in dispute.
On 18 February 2011, Mr Reeday lodged a claim for compensation (T9) for pain caused by ‘lumbar spine,’ ‘thoracic spine’, ‘right shoulder,’ ‘cervical spine’ and ‘headaches’. The accompanying Injury or Disease Details sheets dated 18 February 2011 summarised his claims in relation to all of these conditions as follows (T9 at 39):
(a)The date of injury as “as per unit medical records” (T12 at 48)
(b)The circumstances of injury as ‘performing service tasks’ (other than the ‘headaches’ condition which is stated to have been ‘caused by the cervical spine injury’) (T12 at 48).
(c)The date he first noticed the symptoms/signs of injury as “immediately” (T12 at 48)
(d)He first received medical treatment on 11 January 2011 (T12 at 48).
(e)He first consulted a doctor on 21 January 2011 (T12 at 48).
By a determination dated 22 July 2011 (T25), liability was refused under s 333, pursuant to s 23, of the MRC Act, for the following conditions:
(a)Acute sprain or strain of back, thoracic region.
(b)Acute sprain or strain of neck.
(c)Headache secondary to acute sprain or strain of neck.
(d)Acute sprain or strain of back, lumbar region.
(e)Acute sprain or strain of right shoulder.
Liability was denied on the basis that the delegate was not satisfied that Mr Reeday continued to suffer from any of these conditions.
Mr Reeday requested that the Veterans’ Review Board (the “VRB”) reconsider the determination by letter dated 28 July 2011 (T26).
In his submission to the VRB dated 14 May 2013, Mr Reeday stated that he sought “the correct diagnosis (sic) for these conditions is (sic) applied” (T33 at 123). He also said that he “still has problems as a result of the trauma sustained on the (sic) 8 and 11 January 2011” (T33 at 124).
A VRB hearing listed for 17 May 2013 was adjourned so that an independent specialist medical diagnosis and an opinion on the date of onset and causation could be obtained in relation to each of the claimed conditions (T34 at 147). This resulted in a report prepared by Dr Cairns dated 19 August 2013 (addressed further below under “medical evidence”).
The VRB hearing was resumed on 9 December 2014. On the same day, the VRB issued a decision (T44) in which it affirmed the determination dated 22 July 2011 and substituted a determination that the diagnoses of Mr Reeday’s conditions are:
(a)       Cervical spondylosis.
(b)       Thoracic spondylosis.
(c)       Lumbar spondylosis.
(d)       Right sided L5 pars defect.
The VRB determined that it was not reasonably satisfied that these conditions were connected to Mr Reeday’s military service.
In reaching this conclusion, the VRB noted the relevant Statement of Principles (“SOP”) for each condition and considered that none of the minimum factors expressed in each of the relevant SOPs had been satisfied on the evidence.
Mr Reeday filed an application for review by this Tribunal on 23 March 2015 (T2). He said that the reason for his application was “the medical conditions under review are related to my military service.”
Mr Reeday now seeks review of the reviewable decision of the VRB dated 9 December 2014 – albeit with the number of issues and medical conditions now significantly reduced.
In that regard it is noted that in his Statement of Facts Issues and Contentions dated 29 October 2015, Mr Reeday contended that liability ought to be accepted for the following conditions:
(a)Chronic cervical strain/sprain;
(b)Chronic thoracic strain/sprain;
(c)Chronic lumbar strain/sprain;
(d)Enthesopathy of Right Periscapular Muscles;
(e)Cervical spondylosis;
(f)Thoracic spondylosis;
(g)Lumbar spondylosis; and
(h)Right sided L5 Pars Defect.
In the same document, Mr Reeday concedes that the reviewable decision was correct in finding that liability did not exist for cervical spondylosis. He also does not contend that liability ought to be accepted with respect to the Right sided L5 Pars Defect condition.
At a Tribunal Directions Hearing in February 2017 (then confirmed at a hearing on 11 April 2017), the Commission conceded that liability should be accepted under s 333, pursuant to s 23 of the MRC Act, for the following conditions:
(a)Sprain / strain of back, thoracic region;
(b)Sprain / strain of neck;
(c)Sprain / strain of back, lumbar region; and
(d)Sprain / strain of right shoulder.
As such, the only issues for this Tribunal’s consideration are whether the Commission is liable under s 23 of the MRC Act in respect of Mr Reeday’s claimed conditions of:
(a)Lumbar spondylosis; and
(b)Thoracic spondylosis.
This is not disputed (transcript at page 7).
It is also clear on the evidence that Mr Reeday’s initial claim, and the focus of earlier proceedings, relied on injuries he believed resulted from specific lifting accidents that he claims occurred on 8 and 11 January 2011. Specifically, in a letter from Mr Reeday to DVA dated 10 March 2011 (T16 at 55), Mr Reeday stated that his injuries were caused by two incidents:
(a)The lifting of numerous kits from the back of a truck which immediately damaged his back on 8 January 2011.
(b)Carrying a locker up two flights of stairs which further damaged his back and immediately caused damage to his cervical spine and right shoulder on 11 January 2011.
These incidents were the primary focus of earlier proceedings before the VRB. Before this Tribunal, however, this was not pressed. Instead, Mr Reeday contended that his claimed conditions resulted from weight bearing exercises that he undertook in 2010 to meet the army’s fitness requirements (transcript at page 9 and 10). This, he submitted, included regular gym work and the lifting of heavy jerry cans and tyres as part of his military training. He also claimed he lifted heavy items in the form of general stores and supplies (transcript at page 34) and military kits. This is evidenced, he submits, in a series of Claimant Reports (with detailed tables) submitted in 2015 and 2016 (and discussed further below). Mr Reeday also tendered extensive evidence in relation to the military’s physical training requirements. Mr Reeday also gave oral testimony to this effect and was extensively cross examined.
This new focus significantly limited the issues now to be determined by this Tribunal and the evidence relevant to this matter, all of which is discussed below.
ISSUES
It is agreed that in relation to Mr Reeday’s two remaining conditions (lumbar spondylosis and thoracic spondylosis) the issues for the Tribunal’s determination are:
(a)Whether Mr Reeday suffers or suffered from the claimed conditions and the date of clinical onset.
(b)Whether there is an applicable Statement of Principles (“SOP”).
(c)Whether one of the factors contained in the applicable SOP exists.
(d)Whether Mr Reeday satisfies the tests for liability in s 27 of the MRC Act establishing a sufficient connection between his claimed conditions and his defence service.
LEGISLATION AND RELEVANT STATEMENT OF PRINCIPLES
Legislation
Section 23(1)(a) of the MRC Act provides that the Commission must accept liability for an injury sustained, or a disease contracted, by a person if the person's injury or disease is a service injury or disease under s 27.
Section 27, in turn, provides:
Main 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:
(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.
Section 339(3) of the MRC Act further provides:
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.
Mr Reeday’s defence service constitutes peacetime service pursuant to s 6(1)(c) of the MRC Act. Accordingly, the Tribunal is required to make all findings to its reasonable satisfaction pursuant to s 335(3) of the MRC Act.
Statement of Principles
As Mr Reeday has now limited his claims before the Tribunal to two conditions, only two SOP’s apply and need to be addressed by the Tribunal. These are No 65. of 2014 (thoracic spondylosis) and No. 63 of 2014 (lumbar spondylosis).
Thoracic spondylosis
The relevant SOP for thoracic spondylosis is ‘Statement of Principles concerning Thoracic Spondylosis No. 65 of 2014.’
Paragraph 6 of this SOP sets out the factor or factors that must exist before it can be said that thoracic spondylosis condition is, on the balance of probabilities, connected with the circumstances of Mr Reeday’s relevant service.
Before this Tribunal, and only before this Tribunal, Mr Reeday relied on factor 6(h) which provides:
(h)Lifting loads of at least 35 kilograms while bearing weight through the thoracic spine to a cumulative total of at least 168,000 kilograms within any ten year period before the clinical onset of thoracic spondylosis, and where the clinical onset of thoracic spondylosis occurs within the 25 years following that period...
Lumbar spondylosis
The relevant SOP for lumbar spondylosis is ‘Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014.’
Paragraph 6 of the SOP sets out the factor or factors that must exist before it can be said that the lumbar spondylosis condition is, on the balance of probabilities, connected with the circumstances of the Applicant’s relevant service.
Mr Reedy relied on factor 6(i) which provides:
(i)Lifting loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168,000 kilograms within any ten year period before the clinical sonnet of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the 25 years following that period…
EVIDENCE
This matter was heard in Perth on 27 February 2017. Extensive written closing submissions were received on 7June 2017.
Mr Reeday was represented by his military advocate, Mr Larter. The Commission was represented by counsel, Ms Blackford-Slack (herein referred to as ‘Ms Slack’). Mr Larter is not legally trained but was nonetheless of considerable assistance to Mr Reeday and indeed the Tribunal. As perhaps is to be expected, Mr Larter struggled to some extent with issues of relevance and the limits of acceptable examination in chief and cross examination. A great deal of medical evidence was provided by Mr Larter that was ultimately not relied on or indeed relevant to the limited medical and factual issues before the Tribunal. Ms Slack did not object to Mr Larter’s approach and allowed all evidence to be cited and relied on by Mr Larter as long as she had an opportunity to review it at the hearing. Ms Slack also assisted Mr Larter with the organisation of the extensive materials he wished to present to the Tribunal. This cooperative approach to advocacy is well suited to a Tribunal of this sort and others would do well to emulate this approach to litigation. The Tribunal thanks Ms Slack and Mr Larter for their considerable assistance.
Throughout the course of these proceedings, the following evidence was provided to the Tribunal by Mr Larter, on behalf of Mr Reeday:
·A Statement of Facts, Issues and Contentions from dated 29 October 2015
·Supplementary Submissions from Mr Reeday dated 6 September 2016 with 30 attachments referencing case law, relating to legal proceedings, medical assessments, employment specifications – noting, in particular:
-    Letters from the Applicant Dated 2 June 2015 to the Respondent and Tribunal (Attachment 1 and 2)
-    The Applicant's Statement of Facts and Contentions Dated 29 October 2015 (Attachment 3)
-    Repatriation Commission v Law (1980) Federal Court of Australia (Attachment 4)
-    Repatriation Commission v Budworth (2001) Federal Court of Australia (Attachment 5)
-    Repatriation Commission v Kattenberg (2002) Federal Court of Australia (Attachment 6)
-    Repatriation Commission v Cornelius (2002) Federal Court of Australia (Attachment 7)
-    Repatriation Commission v Roncevich (2005) High Court of Australia (Attachment 8)
-    Repatriation Commission v Newson (2008) Federal Court of Australia (Attachment 9)
- VRB Case Note Number 3: Connection to Service under the provision of the Military Rehabilitation and Compensation Act 2004 (Attachment 10)
-    Lumbar Spondylosis Statement of Principle Number 63 of 2014 (Attachment 11)
-    Thoracic Spondylosis Statement of Principle Number 65 of 2014 (Attachment 12)
-    Claimant Report- Carrying or Lifting Loads dated 14February 2015 (Attachment13)
-    Pre-Enlistment Fitness Assessment Dated 10 August 2010 (Attachment 14)
-    Record of Attainment Navigate in Difficult or Trackless Areas Dated 19 September 2010 (Attachm ent 15)
-    Pre-Enlistment Fitness Assessment (PFA) Results Dated 22 December 2010 (Attachment 16)
-    Rifleman Grade 1Employment Specification ECN 343 March 2010 (Attachment 17)
-    Rifleman Grade 2 Employment Specification ECN 343 March 2010 (Attachment 18)
-    Rifleman Grade 3 Employment Specification ECN 343 March 2010 (Attachment 19)
-    Workplace Disability Report Dated 31 May 2012 (Attachment 20)
-    Claimant Report- A Sudden Increase in Weight Bearing Exercise Shin Splints
-    Dated 29 March 2012 (Attachment 21)
-    Claimant Report- Running on the Foot Plantar Fasciitis Dated 29 March 2012 (Attachment 22)
-    Department of Veterans' Affairs Decision and Reasons Dated 5 November 2014 (Attachment 23)
-    Advisory from Disability Compensation Branch 4/2003 CLIK Department of Veterans' Affairs (Attachment 24)
-    Lumbar Spondylosis – Carrying or Lifting Loads While Bearing Weight CLIK
-    Department of Veterans' Affairs (Attachment 25)
-    Osteoarthritis N002 CLIK Department of Veterans' Affairs (Attachment 26)
-    Lifting Loads While Bearing Weight CLIK Department of Veterans' Affai rs (Attachment 27)
-    Thoracic Spondylosis N030 CLIK Department of Veterans' Affairs (Attachment 28)
-    Carrying or Lifting Loads While Weight Bearing CLIK Department of Veterans' Affairs (Attachment 29)
-    Claimant Report- Lifting Whilst in the Army Reserves Dated 4 September 2016 (Attachment 30)
·Supplementary Submissions from Mr Reeday dated 17 November 2016 with attached medical records and health statements from Mr Reeday dated 2012 – noting, in particular:
-   Defence Force recruiting referral dated 1 May 2010
-   Defence Force recruiting medical examination summary dated 20 May 2010
-   Applicant’s blood test results dated 11 May 2010 and 20 July 2010
-   Defence Force recruiting medical report requirements
-   Medical report completed by doctor Westoff dated 18 May 2010
-   Defence Force recruiting report dated 20 May 2010
-   Medical report completed by Doctor Westoff dated 23 July 2010
-   Letter from Respondent dated 11 December 2012
-   Letter from Respondent dated 27 March 2013
-   Letter from Applicant dated 29 December 2012
-   Letter from Applicant dated 5 April 2013
-   Letter from Applicant dated 27 May 2014
-   Member’s Health Statement dated 21 May 2012
-   DVA Annual Report 21-2-13: Top 15 SoPs used in MRCA Decision making
-   DVA Annual Report 2013-14: Top 15 SoPs used in MRCA decision making
-   DVA Annual Report 2014-15: Top 15 SoPs used in MRCA decision making
-   Medical reports from Applicant’s unit medical records
-   Medical report completed by Casey Winton dated 18 June 2016
-   MRCA review committee’s recommendations in regards to liability and personal fitness regimes.
·Application for Defence Force
·Defence Force recruiting referral dated 1 May 2010
·Defence Force recruiting medical examination summary dated 20 May 2010
·Applicant’s blood test results dated 11 May 2010 and 20 July 2010
·Defence Force recruiting medical report requirements
·Medical report completed by doctor Westoff dated 18 May 2010
·Defence Force recruiting report dated 20 May 2010
·Medical report completed by Doctor Westoff dated 23 July 2010
·Letter from Respondent dated 11 December 2012
·Letter from Respondent dated 27 March 2013
·Letter from Applicant dated 29 December 2012
·Letter from Applicant dated 5 April 2013
·Letter from Applicant dated 27 May 2014
·Member’s Health Statement dated 21 May 2012
·DVA Annual Report 21-2-13: Top 15 SoPs used in MRCA Decision making
·DVA Annual Report 2013-14: Top 15 SoPs used in MRCA decision making
·DVA Annual Report 2014-15: Top 15 SoPs used in MRCA decision making
·Medical reports from Applicant’s unit medical records
·Medical report completed by Casey Winton dated 18 June 2016
·MRCA review committee’s recommendations in regards to liability and personal fitness regimes.
·Claimant Report – Running on the Foot Plantar Fasciits from Mr Reeday (date unclear)
·Claimant Report – Carrying or Lifting Loads dated 14 February 2015
·Claimant Report – Lifting Loads Whilst in the Army Reserves dated 4 August 2016
·Claimant Report – Lifting Loads Whilst in the Army Reserves dated 18 August 2016
·Pre-enlistment Fitness Assessment (PFA) results dated 22 December 2010
·Workplace Disability Report dated 31 May 2012
·Record of Attainment dated 19 September 2010
·Claimant Report – A Sudden Increase in Weight Bearing Exercise dated 29 March 2012
·A Statutory Declaration from Mr Reeday dated 26 July 2013
·Recruiting Psychology Report dated 20 May 2010
·Defence Force Application Form of John Reeday dated 28 April 2010
·Medical Report of Dr Jack Edelman dated 1 April 2015
·Medical Report of Dr Jack Edelman dated 16 September 2015
·Medical Report of Dr Greg Duck dated 13 September 2015
·Curriculum Vitae of John Reeday
·Written Closing Submissions dated 30 May 2017

The Respondent, in turn, tendered the following evidence:
·A 293 page set of T-documents (R1);
·An Amended Statement of Facts, Issues and Contentions dated 16 December 2016 (R2);
·Medical Report of Dr Cairns dated 28 July 2015 (R3);
·Written Closing Submissions dated 20 April 2017; and
·Closing Written Submissions in Reply dated 6 June 2017.
The Tribunal is satisfied that all relevant evidence was before the Tribunal and that both parties were provided an opportunity to address it, either orally or in writing.
The Tribunal highlights the following relevant material before it.
Statutory Declaration of John Reeday dated 26 July 2013
Mr Reeday provided a statutory declaration dated 26 July 2013 that provided as follows:
On the 20 May 2010 an entry level medical examination was conducted at Defence Recruiting Perth and it was recommended that I have a further eye test and blood test due to elevated cholesterol.
These tests were completed and it was determined by an Army Medical Officer on the 26 July 2010 that I was Class 1.
On the 9 August 2010 another medical assessment was conducted and it was determined that I was medically fit Class 1 and later that day I officially enlisted with the Australian Army Reserves Infantry Corps as a Rifleman.
In December 2010 I passed the Army fitness test and on the 21 December 2010 I attended the Leeuwin Medical Centre where I was physically examined and assessed as fully fit and able to engage in Army Recruit training.
On the 6 January 2011 I left Perth to attend Army Recruit training at Kapooka, New South Wales.
On the 7 January 2011 I arrived at Kapooka and was assigned to 16 Platoon. My Section Commander was Corporal Wolfe.
On the 8 January 2011 I and a colleague were ordered to lift 25-30 trunks from the back of a truck which resulted in a twisting/wrenching injury to my lower back. The trunks weighed approximately 25kgs and was a two person lift.
We were under pressure from our Corporals to quickly complete this task and there was a particular trunk at the back of the truck that my colleague couldn't reach so I offered to leave it to me to lift, as I'm tall (6ft 2in) and when I turned to lower the trunk I suffered a twisting/wrenching injury to my lower back.
Due to this injury I immediately ceased the task of lifting trunks from the truck.
The injury was aggravated when I had to jump off the truck and this resulted in a sharp shooting pain to my lower back.
A witness to the above incident, which occurred in the 15 and 16 Platoon Car Park, was Recruit Kennedy.
I reported the incident to Corporal Wolfe and asked if he had any medication to relieve the pain. I was informed that only a Doctor can provide medicine.
Noting that this was only day 2 of my Kapooka training I just battled through the ongoing pain. As a result of this injury I couldn't sleep and my lower back was stiff and sore.
On the 9 January 2011 I was required to pass a fitness test which had 3 components being the Beep Test, 45 Sit Ups and 15 Push Ups, which I failed due to my lower back condition.
When I was completing the Sit Ups it caused further pain to my lower back and due to this pain I couldn’t completed the required number of Push Ups.
This was very embarrassing for me as I was extremely fit and had always passed my fitness tests at my home unit.
On the 11 January 2011 I was ordered to lift a locker up two flight [sic] of stairs.
Because of my height and weight (approximately 97kgs) I led the way up the stairs lifting the heavy end with my back to the stairs.
The locker was large, awkward with few grip points weighing approximately 20kgs and was a two person lift.
In the process of ascending the 2nd flight of stairs I misjudged a step, causing me to stumble.
Instinctively, to regain my footing, and to prevent dropping the locker on my legs, I elevated the locker above head height, resulting in a twisting/wrenching injury to my lower back, right shoulder and cervical spine.
The pain was severe and I immediately went to the rest room to wash my face and to compose myself.
I reported the incident to Corporal Wolfe who stated that I should see a Doctor, however, I declined due to the fact that our Platoon were later that day to commence Steyr practical training.
This incident occurred between the 12 and 14 Platoon stairwell, and was witnessed by Recruit Handrickan.
Due to the pain in my shoulder, neck and lower back I wasn’t able to complete the Steyr training.
Corporal Wolfe the organized for me to be taken by ambulance to the Kapooka Hospital. I was examined by a Physiotherapist and an Army Medical Officer for my injured right shoulder, neck and lower back. I was provided with medication and returned to the lines.
I couldn't sleep due to the pain in my right shoulder, neck and lower back which I reported to Corporal Wolfe and was again taken by ambulance to the Kapooka Hospital.
I was admitted to the Kapooka Hospital on the 12 January 2011 and discharged on the 18 January 2011. I returned to the lines pending my return home.
I was provided a chit (PM101) which stipulated employment restrictions of no pack or upper limb activities.
Due to my injuries that occurred on the 8 and 11 January 2011 I suffered immediate pain, stiffness, tenderness, reduced mobility and/or range of movement to my lumbar spine, cervical spine and right shoulder.
These signs and symptoms lasted for at least 2 weeks. They have continued to this day in varying degrees of intensity.
On the 19 January 2011 I left Kapooka and returned to Western Australia.
I didn't have a General Practitioner and due to my injuries I managed to make an appointment with Doctor Duck of the Bassendean Family Practice and I have been under Doctor Duck's management and care ever since.
To date I have consulted Doctor Duck approximately 60 times for my service related injuries.
As I was physically incapable of returning to my Army tasks and this was supported by Doctor Duck. I provided updates to my home unit via Captain Knop and the Administrative Staff.
Captain Knop understood and respected my situation and stated that my unit will organize for a Medical Employment Classification Review.
This review was conducted at the Leeuwin Medical Centre on the 8 March 2011.
An Army Medical Officer .reviewed my injuries and this resulted in me being medically downgraded with major employment restrictions.
In May 2012 I had another Medical Employment Classification Review.
An Army Medical Officer reviewed my injuries and this resulted in a recommendation that I wasn't employable on medical grounds.
On the 11 July 2012 the Medical Employment Classification Review Board determined that I was to be medically discharged.
My medical discharge is currently held in abeyance pending the outcome of my claim for recognition of my service related injuries lodged with the Department of Veterans' Affairs.
Prior to joining the Australian Army Reserves I did not have any known abnormalities to my Lumbar Spine, Cervical Spine or Right Shoulder.
The clinical onset of my lumbar spine condition was the 8 January 2011 and for my cervical spine and fight shoulder condition the 11 January 2011.
No further written statement was provided to the Tribunal. Mr Reeday did, however, provide a Statement of Facts, Issues and Contentions, Written Closing Submissions and was extensively cross examined on his remaining conditions as they relate to the relevant SOPs now before the Tribunal. The Tribunal thanks him for the clarity of his submissions. This evidence is discussed below.
Medical History and Evidence
On the evidence, it appears that Mr Reeday had no injuries or reported ailments prior to enlisting in the military. His Medicare records make that clear. No evidence was given under cross examination that alters the Tribunal’s conclusions in that regard.
An accurate summary of much of Mr Reeday’s relevant medical history and medical reporting was provided by the Respondent at paragraphs 3.1 to 3.24 of a Statement of Facts, Issues and Contentions dated 16 December 2016. The Tribunal notes relevantly as follows.
On 23 July 2010, Dr G Westhoff relevantly described Mr Reeday’s health and recent health regime as follows:
Mr Reeday has mild hypertriglyceridaemia and moderate hypercholesterlaemia. Mr Reeday's readings have improved markedly with his recent diet and exercise changes that he intends to continue with:
This places no limits on the applicant's functional capacity.
On Injury or Disease Details sheets completed by Dr G Duck in 2011 (T10 to T14), Dr Duck provided the following diagnosis in relation to Mr Reeday:

Condition

Diagnosis

Lumbar spine

Lumbar paravertebral muscle and connective tissue pain, cervical facet joint strain with co-contraction causing headaches

Headaches

Muscle contraction headaches, 2nd degree neck strain

Cervical spine

Facet joint strain, muscle spasms

Thoracic spine

R sided paravertebral muscle strain

Right shoulder

Capsular strain/tendonitis, R shoulder peri scapular muscles

As noted above, in a letter from Mr Reeday to the DVA dated 10 March 2011 (T16), Mr Reeday stated that his injuries were caused by two specific events:
(a)The lifting of numerous kits from the back of a truck which immediately damaged his back on 8 January 2011.
(b)Carrying a locker up two flights of stairs which further damaged his back and immediately caused damage to his cervical spine and right shoulder on 11 January 2011.
Mr Reeday also contended these injuries required him to be taken to the Kapooka Army Hospital via ambulance where he was admitted and stayed for 7 days (T16). While there, he received treatment for pain, stiffness and discomfort of the lower back, neck and right shoulder, and for headaches (T33). According to Mr Reeday, following his discharge from the hospital he returned to Perth as he could not complete the recruit training (T33).
An undated Defence WHS Incident Report notes that on 8 January 2011, while on duty at an outdoor location, Mr Reeday “utilised an incorrect lifting technique” and “attempted to lift an object above head height,” the object being “pers(onal) trunks, lockers.” No details as to the injury suffered are recorded.
Results from a Defence SAM request for information dated 13 September 2014 (T43) advised that Mr Reeday did not complete RTC session 0177 from 7 January 2011 to 5 February 2011 due to “Med/Psych reasons.”
Service medical records (T47) detail Mr Reeday’s hospital stay as follows:
(a)Presented with lower back pain on 12 January 2011 following lifting numerous packs out of a truck. Examination of lower back and right shoulder revealed good range of movement. He also presented with right upper thoracic/rhomboid pain. He was admitted for pain management and physiotherapy, but his pain was slow to resolve. There were no signs of significant injury. He was unable to return to his platoon to complete his training and was returned to his home unit for further follow up if problems persisted (T47 at 263).
(b)During the hospital stay, Mr Reeday reported daily ongoing chronic pain in his lower lumbar back, neck and right trapezius/rhomboid (page 276).
In a physiotherapy Initial Assessment Report dated 13 January 2011 (T6) and Physiotherapy Discharge Summary dated 18 January 2011 (T7), Paul Marshall noted that Mr Reeday presented with lower back pain following ‘unloading kit from truck’ and right shoulder pain following ‘unloading the carrying of a locker up two flights of stairs’. Mr Reeday was diagnosed with non-specific shoulder and back pain.
An extract from an in patient record summary dated 18 January 2011 (T16 at 57) reads as follows:
Presented on 12Jan11 with LBP which came on following lifting numerous packs out of the back of a truck on 2 Jan 11. He felt pain during this process, and when he jumped off the truck he experienced shooting pain in his lower back. On 11 Jan 11 his pain became worse after carrying a locker up 2 flights of stairs. He also developed developed [sic] pain in his right upper thoracic/rhomboid region.
Examination of lower back revealed a reasonable ROM, with no referred symptoms. His right shoulder had a full ROM.
He was admitted for pain management & physio. His pain was slow to resolve, and he was initially giver regular Ibuprofen 400mg tds, Panadeine Forte 2 qid, with Tramal 50mg for breakthrough pain.
There were no signs of significant injury to the lower back, and right upper parathoracic region.
He was unable to be returned to his platoon to complete his GRes training, and was returned to his home unit to have further follow up with his GP if his back problems persisted.
Gayatri Mahendram, Physiotherapist, writes on 17 February 2011 (T8 at 33) as follows:
Thank you for your referral of John for Physiotherapy treatment who presented to the clinic with low back pain, right shoulder pain and persistent headaches. He injured himself in an army training camp on the 11th January 2011, while carrying a locker up 2 flights of stairs.
On initial presentation John describes constant pain 7-8/10 especially with walking for over 10 mins and prolonged standing for about 5 mins. He reports difficulty sleeping and getting comfortable at night time and awakes with right sided headaches and low back stiffness. He also reports trying a variety of medications but says that most of them still make him feel nauseas [sic]. This I believe is being reviewed by yourself on a regular basis. He goes to the local hydrotherapy pool at least 4-5 times a week, this he tolerates well, ambulating 75m comfortably and getting though a prescribed pool exercise program,
Physical examination revealed
·Mild reduction in his lumbar ranges. His movements were mainly pain limiting at the end of ranges,
·He has full shoulder ranges within normal limits,
·Cervical range was within normal limits for flexion and extension; however with right/left rotation and right/left lateral flexion were, limited to ½ ranges. These movements were mainly stiffness and moderate pain 6/10 limited.
·Palpable trigger points were evident especially in his right and left quadratus lumborum, erector spinae muscle. Cervical muscles were bilaterally tight along with his upper and lower traps and especially his right rhomboids;
·Specific assessment of his lumbar region showed there was some hypomobility in L3/L4 and L4/I5 left facet joints. In his cervical spine there was hypomobilily of C2/C3, C3/C4 md C4/C5 joints right facet joints.
I have already commenced treatment of his lower back, cervical spine and headaches employing the use of soft tissue techniques, heat and joint mobilisations and taping of his low back to decrease his pain, increase his range of movement and help decrease the intensity of his cervicogenic headaches. I have also given John some exercises and stretches to perform as a home exercise program…
In a report written by Dr Simon Spedding (Epidemiologist, Sport and Exercise Physician) dated 27 April 2011 (T19), Dr Spedding reported no diagnosis for the conditions claimed and noted the pattern of illness (pain reporting and length of hospital stay) is inconsistent with an acute muscular sprain or strain sustained during normal service related activities.
A radiological report (CT cervical, thoracic and lumbar spine) dated 7 May 2011 (T20) stated that there was a right L5 pars defect, mild disc degeneration, lumbar facet arthropathy, cervical spondylosis and foraminal stenosis and at T9/10, a small right postolateral disc protrusion.
A radiological report (CT right shoulder) dated 14 May 2011 (T21) suspected a mild tendo-osseous attachment injury to the medial margin of the scapula that is not clearly shown. No fractures or dislocations were found.
Dr Spedding, in further reports dated 17 June 2011 (T23) and 21 July 2011 (T24), concluded that the CT scan findings show mainly age related changes; the cervical spine degeneration cannot be related to the lifting of packs incident; the right L5 pars defect is a congenital condition; and, the suspected mild tendo-osseous attachment injury could not have been caused by service 4 months previously. Further, Dr Spedding commented that the ‘nursing notes’ do not describe thoracic or cervical spine pain on admission. Cervical spine pain is mentioned only from 14 January 2011 and ‘medical records’ dated 12 January 2001 (sic) record that Mr Reeday stated he was ‘back pain free’ at that time.
Dr Spedding was ultimately of the view (T24 at 95) that he was:
… unable to make any substantive diagnosis of the claimed conditions other than acute sprains and strains now resolved. The member claims that the conditions are in fact deteriorating. This would be contrary to the normal course of an acute sprain or strain and may be consistent with pre-existing degenerative conditions of the cervical thoracic and lumbar spine as indicated by the minor degenerative changes noted in the CT scan.
An MRI of Mr Reeday’s cervical spine dated 22 August 2011 (T27) found disc degeneration from C2/C3 through to C6/C7, along with non-compressive soft disc protrusions at C5/C6 and C6/C7 which ‘may result in inflammatory radicular symptoms’.
In a Members Health Statement dated 21 May 2012, Mr Reeday wrote as follows:
Work environment

Outline the requirements of your duties in the current work environment

Obtaining optimum fitness in preperation [sic] for recruit training at Kapooka and the completion of initial employment training.

This requires extensive preperation [sic] for the unique workplace of the adf as its mandatory to pass the pfa and bfa.

In a Workplace Disability Report dated 31 May 2012, Mr Reeday further wrote:
Outline the requirements of the member’s duties in their current work environment
Conduct recruit training, conduct Physical training, Pass PFA, Conduct BFA, Marching in formation, load carry, field navigation training
A Medical Employment Classification (MEC) Advice dated 5 June 2012 (T33 at 137) noted Mr Reeday’s numerous employment restrictions (unfit for running, lifting heavy weights, climbing etc) and commented that Mr Reeday was not employable on medical grounds. The subsequent Minute of MECRB Determination dated 19 July 2012 (T33 at 142) determined that Mr Reeday was ‘Medically Unfit’ as a soldier based on that advice.
Report of Dr Anthony Cairns dated 19 August 2013 (T36 at 156)
An extensive medical report was prepared by Dr Anthony Cairns on 19 August 2013 (T36 at 156). Relevantly, that report provided:
Having reviewed the available records and file data, interviewed and examined Mr Reeday, I now submit a detailed medical report in answer to your request.
The following file records were made available to me:
•Request for opinion Veterans’ Review Board 30 May 2013.
•Copy of letter Veterans’ Review Board to J Reeday 30 May 2013.
•Copy of Veterans’ Review Board Decision and Reasons, 7 pages, 17 May 2013.
•Copy of Defence WHS Incident Report 5 pages.
•Copy of report Dr G Duck, 26 May 2012.
•Copy of Claim forms, Dr G Duck, 18 February 2011, 6 pages.
•Copy Service Inpatient Record Summary 18 January 2011.
•Copy Physiotherapy Discharge Summary 18 January 2011.
•Copy Medical Continuation notes 13 January 2011 to 18 January 2011,4 pages.
•Copy Physiotherapy Initial Assessment Form 13 January 2011,2 pages.
•Copy of Continuation notes 12 and 13 January 2011.
•Copy Outpatient Clinical Record 12 January 2011.
•Copy minute delegate of MRCC to Dr Spedding 27 April 2011.
•Copy minute by Dr Simon Spedding 27 April 2011.
•Copy letter J Reeday to C Videon DVA received 19 May 2011.
•Copy of report CT right shoulder 14 May 2011.
•Copy of report CT cervical, thoracic and lumbar spine 7 May 2011.
•Copy minute by Dr S Spedding 17 June 2011 and 21 July 2011, 3 pages.’
At the time of this presentation Mr Reeday provided copies of additional documentation:
•Copy of report MRI cervical spine 22 August 2011.
•Copy of report ultrasound right shoulder 19 September 2011.
•Copy of report injection of the back 19 December 2011.
•Copy of statutory declaration by J Reeday, 26 July 2013, 5 pages.
•Copy of ergonomic assessment report by CRS 3 October 2011, L Parsons, 3 pages.
•Copy of Defence WHS Incident Report 6 pages.
•Copy of treatment referral Dr Duck to physiotherapy 21 January 2011 (back and right shoulder).
•Copy of referral Dr Duck to Bassendean Chiropractic & Wellness Clinic, undated.
•Copy Bassendean Physiotherapy to Dr Duck 17 February 2011.
•Copy of history of medications/supplements regime and treatment regime, undated.
•Copy of prescriptions, Endep 50mg, Tramal 50mg, 2 pages.
…
Mechanism of Alleged Injury/Sequence of Events:
The circumstances of Mr Reeday’s injury are detailed within his statutory declaration dated 26 July 2013.
He states that at approximately 1600 hours on 8 January 2011, in the course of his Army recruit training at Kapooka in New South Wales, he was ordered, with the assistance of a fellow trainee, to lift 25-30 trunks containing basic kit supplies, weighing 20-25kg from the back of a truck. Because of the elevated situation of one particular trunk, he attempted a unassisted lift, grasping the two handles of the trunk at or above shoulder level, and as he turned to lower the trunk to the tray of the truck, he experienced the sudden onset of sharp low back pain, slightly more; intense to the right than the left of the midline.
Notwithstanding, he then jumped from the tray of the truck, whereupon he experienced a sharp increase in the severity of the pain.
He states that he reported the injuries to his superior, the incident recorded, and he was directed by the officer to present to the RAP.
John Reeday confirms that he did not follow that direction, electing to “battle through it”.
Accordingly, he did not seek any treatment at that time, nor did he attempt self-treatment. He returned to his room where he emptied his basic kit trunk before proceeding to dinner. He is unsure as to whether he attended a class that evening, still in pain, and then experiencing difficulty and sleeping poorly that night. On the following day, 9 January 2011, he attended ongoing introductory classes in a seated position, and. when required to participate in a fitness test supervised by a PT instructor, he was unable to pass the test, and states that he was “embarrassed” thereby. Specifically, he was unable to attempt/complete required sit-ups and push-ups because of his ongoing low back pain. He states that the supervising sergeant was “annoyed”, despite which John Reeday did not seek any treatment. Once again he slept poorly that night, confirming that he had not resorted to analgesic medication at that stage.
On 10 January 2011, he again attended classes despite ongoing low back pain, not resorting to analgesic medication, and again sleeping poorly that night.
On the morning of 11 January 2011 he attended classes, and as far as he can recall after lunch was ordered to assist a fellow trainee shifting a metal locker of old design and empty, estimated to weigh about 20kg, up two flights of stairs. As John Reeday backed up the stairs they lost control of the locker, as a result of which he “wrenched” his neck, injured his right shoulder, and aggravated his low back pain.
Ongoing pain prompted him to report the incident and aggravation to his section commander, who instructed him to proceed to the RAP.
Mr Reeday advises that he declined to follow that advice due to his desire to attend a Steyr rifle training session.
He states that while doing so, and walking with the rifle estimated to weigh about 2½kg, he suffered aggravation of his low back, and was transported by ambulance to the RAP.
Initial/Early Treatment Received:
Upon presentation to the RAP he reported the injuries to his low back, neck and right shoulder and was assessed by the attending medical officer and physiotherapist. He was prescribed ibuprofen medication and returned to his room, unable to sleep that night because of pain arising from his injuries.
The following morning, 12 January 2012, he was transported by ambulance back to the RAP and admitted to the hospital where he remained for one week, treated with rest, analgesic medication and three episodes of physiotherapy which resulted in some improvement in all areas of injury.
He was discharged back to his “lines”, with a chit excusing him from any activity requiring use or loading of his upper limbs, or carrying objects.
He then returned to his home in Western Australia and presented to his local medical officer, Dr Duck on 21 January 2011.
Subsequent Proqress/Specialist Management:
Ongoing treatment has been supervised by Dr Duck, with referral to physiotherapy, specifically including acupuncture from which Mr Reeday advises he has derived “a lot of benefit”.
He has not been referred for specialist assessment or treatment supervision.
Current Status:
...
3.        Low Back Pain:
He describes ongoing symptoms of pain, soreness, stiffness and tiredness affecting his low back. It is said to be situated slightly above belt level, more marked to the right as compared to midline as compared to left side. There is intermittent radiation of pain to the buttocks, more marked on the right than the left. Pain is said to vary in intensity from 3-6 on a scale of 10.
He reports four episodes of acute “spasms”, pain persisting up to 30 minutes, on one occasion persisting “all day”.
He is of the view that his lower back impairment seems to be improving with the passage of time.
4.        Thoracic Pain:
He describes infrequent, episodic mid back pain, estimated to occur about once weekly, lasting up to 30 minutes, of intensity 2 or 3 on a VAS Scale 10. It is typically provoked by attempted lifting. He employs magnesium supplements for treatment’.
He is of the view that this pain seems to be gradually improving with the passage of time.
…
Present Activities:
He reports no particular restriction on his usual activities of daily living, although he claims to experience some aggravation of back pain lifting heavier objects on shopping excursions. Apart from the usual activities of daily living he claims to have been unable to resume running for fitness and leisure, previously undertaking 35km per week, and remains unable to resume gymnasium-based fitness exercises.
...
Past Medical History:
John Reeday advises that he also suffers with bilateral chondromalacia patella, shin splints and plantar fasciitis. … there were no other significant features in his past medical history, specifically a denial of any previous injury or impairment in the areas under review, nor has he been involved in any subsequent incident or accident which may have aggravated the injuries.
…
Back/Spine:
Thoracic Spine
He designated the location of “thoracic” pain as at about the thoracolumbar junction, extending to the L2/3 interspace as confirmed on palpation. Low back pain is described at about the lumbosacral junction, more marked to the right than the left of the midline. There is some flattening of the lumbar lordosis in upright stance. Otherwise no apparent deformity of the thoracolumbar spine and apparent slight step at the lumbosacral junction non-tender to firm pressure, and there was no apparent paravertebral muscle spasm, Trendelenburg’s sign negative bilaterally.
Active thoracolumbar movements were estimated as to flexion 80°, with no reversal of spinal rhythm on resuming upright stance. Extension, lateral flexion and rotation movements were all to full range 30°, extension only evoking a report of provocation of slight discomfort at the lumbosacral level.
Lower Limbs:
He was able to climb onto the examination couch without restriction, sitting straight leg raising to 80° bilaterally, slight hamstring tightness noted. There were no signs of neurologic compromise nor sciatic nerve root tension apparent in either lower extremity, with normal motor and sensory innervation and normal, symmetrical deep tendon jerk responses, downgoing plantar responses, and no ankle clonus elicited.
He exhibited a normal gait and was able to toe walk without discomfort. Heel walking evoked a report of provocation of bilateral heel pain.
There was no leg-length inequality, the cardiovascular status of both lower extremities clinically normal.
Chest expansion measured at 7cm.
INVESTIGATIONS:
Reports of imaging investigations undertaken included CT right shoulder of 14 May 2011 reported by Dr Doss: Findings: The reformats have been done with the source data from the CT cervical spine with full abduction and internal rotation. At the medial margin of the scapula in the region of interest I suspect there is a mild tendo-osseous attachment injury involving the rhomboids or inferior trapezius not clearly shown. There is minimal anterior and posterior glenoid rim spurring consistent with chronic changes. There is no fracture or destructive lesion. No collection, large masses, fracture or dislocation.
Comment: “I suspect a mild tendo-osseous attachment injury to the medial margin of the scapula that is not clearly shown.”
CT cervical, thoracic and lumbar spine of 7 May 2011 on referral by Dr Kent with clinical history of “lifting injury January 2011. Pain at all levels”, was reported by Dr Kaard as: “Comment: Right L5 pars defect. Mild disc degeneration. Lumbar facet arthropathy. Cervical spondylosis and foraminal stenosis. T9/10 small right posterolateral disc protrusion.”
It is noted that Dr Kaard also referred to “Mild facet arthropathy is present at the lower thoracic T10/11 to the upper lumbar level.”
MRI cervical spine of 22 August 2011 was reported by Dr Doss as: “Conclusion:
1.From C2/C3 level through to C6/C7 disc degeneration was present with relatively preserved disc height: At C3/C4 there is a prominent left disc uncovertebral predominantly hard disc lesion that impinges the traversing left C4 root. Smaller disc uncovertebral lesions are seen on the left at C5/6 and to a lesser extent C6/7 with potential for left C7 irritation.”
2.The soft disc protrusions described are non-compressive at the C5/6 and C6/7 levels and may result in inflammatory radicular symptoms.”
Ultrasound right shoulder of 19 September 2011 was reported by Dr Kaard as: “Comment: Suspected mechanical impingement between medial margin of the scapula and the trapezius/rhomboids. Slightly less distant interface between the scapula and adjacent muscles on the right: Ultrasound-guided injection of corticosteroid and local suggested for further evaluation and treatment.”
Injection of the back of 19 December 2011 was described by Dr Kaard as “Under ultrasound guidance the symptomatic region over the medial border of the right scapula was infiltrated with 1cc Celestone and 3cc bupivacaine.”
SUMMARY AND ASSESSMENT:
In summary therefore, this 41-year-old public servant presents with history of having sustained injuries to his neck, right shoulder, thoracic and lumbar levels of his spinal column in incidents during recruit training on 8 January 2011 (low back), and 11 January 2011 (neck, right shoulder and low back) described by observers at that time as “strain” injuries. The claimant presents with alleged ongoing impairment involving his neck, right shoulder and thoracolumbar spine over two-and-a-half years following the respective incidents. Subsequent imaging investigations have demonstrated constitutional, degenerative changes occurring throughout his spinal column and in relation to the right glenohumeral joint.
…
Therefore, in-response to the specific questions within your referral of 30 May 2013, I have the following answers to offer:
1.From what musculoskeletal medical condition(s), if any, does the claimant suffer from?
In my opinion, the claimant suffers from constitutional, multifocal musculoskeletal conditions including multi-segmental intervertebral disc degeneration throughout the cervical, thoracic and lumbosacral spine, spondylosis, and an apparent enthesopathy at the site of alleged injury involving the right scapula and muscle attachments. It is also noted that he reports multifocal inflammatory disorders involving his musculoskeletal system including bilateral chondromalacia patella, bilateral shin splints and bilateral plantar fasciitis.
It is noted that despite his multifocal musculoskeletal complaints, there does not seem to have been any investigation of possible systemic inflammatory disorder.
2.If the claimant does suffer from any musculoskeletal medical condition(s), what was the date of clinical onset?
In relation to his low back, the claimant alleges onset on or about 8 January 2011 with subsequent aggravation of his low back together with injuries sustained to his neck and right shoulder in an incident of 11 January 2011.
Details regarding onset of other musculoskeletal complaints was not obtained.
3.If the claimant does suffer from any musculoskeletal medical condition or conditions, what was the likely cause of that condition or of those conditions? In particular, could the condition be attributed to the circumstances described by the claimant as detailed in the Board’s Decision and Reasons?
In my opinion, it is possible that the claimant sustained soft tissue, musculoligamentous strains to the thoracolumbar spine, neck and right shoulder in the incidents as claimed. Contemporaneous notes suggest that the injuries were soft tissue, and thereby could reasonably be expected to have resolved within a matter of weeks in the absence of any further specific episodes of aggravation.
Subsequent investigations have indicated widespread, multifocal, constitutional degenerative changes in all affected areas, including the right glenohumeral joint, although the clinical findings suggest that he may be suffering ongoing enthesopathy in relation to the right scapula, historically derived from the alleged injury. In my opinion, the claimed conditions derive from constitutional, multifocal degenerative changes and inflammatory processes unrelated to his military service, apart from that involving his right scapula which, although historically provoked by the service-related incident, may well be ongoing related to his apparent systemic predisposition.
I believe that the widespread nature of his complaints justifies further investigation to exclude an as yet undiagnosed systemic inflammatory disorder.
I also believe that there are manifestations of biopsychosocial potentiation in the claimant’s presentation..

Relevantly, Dr Cairns diagnosed Mr Reeday with:
(a)Cervical spondylosis;
(b)Thoracic spondylosis;
(c)Lumbosacral spine spondylosis; and
(d)Enthesopathy at the site of alleged injury involved the right scapula and muscle attachments,
with a date of onset, based on the Applicant’s self-reporting, of 8 January 2011 (back) and 11 January 2011 (aggravation of back, plus neck and right shoulder).
Significantly, in relation to causation, Dr Cairns concludes that the:
… claimed conditions derive from constitutional, multifocal degenerative changes and inflammatory processes unrelated to his military service, apart from that involving his right scapula, which although historically provoked by the service-related incident, may well be ongoing related to his apparent systemic predisposition.
In a report dated 21 September 2013, Dr Duck wrote to Dr Edelman (Rheumatologist) and requested his specialist opinion as follows:
John injured himself in 2011 whilst on an attachment in Sydney with the Army Reserve. He first injured his low back and later his neck and right shoulder region; he was admitted to the hospital for a week after the latter injury. There is ongoing pain especially around the scapula and neck. Acupuncture helps but it has not resolved.
He is in dispute with the Army over causation/compensation.
MRI demonstrates some disc degeneration from C2-C7. CT suggested a tendo-osseous attachment injury at the medial margin of the scapula.
In one of his recent medico-legal reviews, the Consultant Orthopaedic Surgeon raised the possibility of an "undiagnosed systemic inflammatory disorder". I have never suspected such thing, but have now done investigations which, to my eye, rule out that possibility.
However, Iris CRP is 8 and Anti Nuclear Antibodies 1:80 (ESR 9). I would appreciate your expert input.
In response, Dr Edelman wrote on 14 October 2013 as follows:
Many thanks for asking me to see John. I note that he was in the Army reserve and injured himself in January 2011. The first incident caused low back pain and the 2nd incident caused neck, right shoulder and exacerbation of the low back pain. I note that since then he has been seeking own treatment and seems to be having problems with the Army to get all of this recognized as an injury during Army Reserve service.
I note that he has recently seat one of the Orthopaedic Surgeons Spin Medico Legal Consultants who Suggested that he has an undiagnosed systemic inflammatory disorder.
It seems that this has been based on his retro patella chondromalacia, his plantar fasciitis and shin splints. These by the way all started towards the end of 2010 when he was doing a lot more exercise to try and get himself fit with a lot of running.
On examination today he was high arched, there was obvious retro patella problems. He moved his right shoulder reasonably well and his neck and his low back.
There is no evidence of a systemic inflammatory disorder. I am sure that it is undiagnosed because it does not exist. All of this is mechanical in nature and his knees and feet are unrelated to his other problems.
It would seem to me that there would be no doubt that his right shoulder, neck and low back is directly related to the incidents that he describes in January 2011 and they are mechanical in nature and again related to those injuries. He really needs to enter a, proper gym and swimming programme which he is trying to do.
Dr Patrick Hanrahan (Rheumatologist) then provided a report dated 3 February 2014 (T37) following an examination of Mr Reeday on 13 January 2014. Dr Hanrahan concluded that there was no evidence that Mr Reeday suffered from an underlying inflammatory arthropathy and had potential to improve further regarding the pain and stiffness in his back and neck, and his headaches. Dr Hanrahan noted that Mr Reeday had a full range of dorsal and lumbar spine movement and only slight restricted neck motion.
Relevantly, this report reads as follows:
Present Activities:
Mr Reeday used to run 35km a week but he has been advised not to run. His girlfriend does his washing and hangs out his clothes but otherwise he remains reasonably active and attends a pool three days a week.
Past Medical History:
Mr Reeday’s general health had been good, but around the end of 2010 he developed problems with his knees, feet and lower legs and was diagnosed as having chondromalacia patellae, shin splints and plantar fasciitis. All of these symptoms had almost resolved with the use of moulded orthotics and currently did not trouble him.
…
PHYSICAL EXAMINATION:
Mr Reeday gave a consistent and coherent history. He moved normally and attended to adopt the military “at ease” posture during intervals in the examination process.
He was 186cm in height and weighed 89kg with normal posture and gait and he had no difficulty with undressing or redressing.
…
Upper Limbs/Shoulder Girdles:
There was some tenderness over the right medial axillary area in what I thought was most likely the superior rhomboid or trapezius.
There was an intermittent clicking sensation associated with palpation but there was no abnormality on examination of shoulder movement.
There was some tenderness over the right medial axillary area
Chest:
There was chest expansion of 4cm.
Back/Spine:
There was full range of dorsal movement with lateral flexion 22cm bilaterally and a full range of lumbar spine movement with a 15cm segment compressing by 2cm and expanding to 21cm without difficulty.
General:
There was no neurological disturbance and no evidence of any peripheral arthropathy.
Lower Limbs:
There were quite prominent foot arches but there was no tenderness, no instability and no abnormality on examination of the hips or knees that I could detect.
Review of File Records:
Mr Reeday brought along some investigations performed by Dr Duck and a letter from Dr Edelman.
Investigations demonstrated a CRP of 8 (less than 5), ANA as 1 in 80, he was B27 negative and other blood tests were normal.
He had an MRI report which showed C2 to C7 disc degeneration and a CT which suggested tendo-osseous attachment injury at the medial margin of the right scapula.
Dr Edelman noted in his letter of 14 October 2013 that there was “no evidence of a systemic anti-inflammatory disorder” and that “it does not exist”
SUMMARY AND ASSESSMENT:
In response to your specific questions:
Schedule of Questions – Liability
Could you please provide a diagnostic report addressing the following questions which includes a clear diagnosis, a date of onset of each condition, and the client’s current clinical state.
1.        The date of onset for the condition;
The symptoms developed on 8 January 2011 and 11 January 2011.
2.        The probable cause of the condition;
The conditions seem to have developed most likely as a result of the trauma Mr Reeday suffered to his lumbar spine on 8 January 2011 and to the neck, shoulder and low back area on 11 January 2011.
3.        Frequency of treatment provided to client;
Please refer to “Initial/Early Treatment Received”; “Subsequent Progress/Specialist Management” and “Present Treatment” in the body of this report.
4.        Current treatment plan including medication;
Mr Reeday continues to be treated with an exercise program at the pool which he attends three times a week for between 1 and 1.5 hours.
He continues to take Tramadol 50mg daily most days, occasionally he takes an extra Tramadol. He uses magnesium supplements and occasionally increases the amount of this he uses. He is also on fish oil supplements.
5.        Current symptoms – frequency and severity;
Please refer to “Current Status” in the body of this report.
6.        Effects of conditions on social, family, working life;
Please refer to “Current Status” and “Present Activities” in the body of this report.
7.Please comment on whether the current symptoms are due to the natural progression of the condition/disease.
Mr Reeday had evidence of degenerative disease in his spine by virtue of bone disc bars present on imaging in 2011, however he did not have any symptoms related to this until he had the accident.
He may have continued to remain asymptomatic and I do not believe that his current symptoms are due to the natural progression of some underlying degenerative disease.
8.        Are the signs and symptoms consistent with the organic pathology;
Mr Reeday has evidence of degenerative disease in his spine and he has possible evidence of muscular attachment abnormality to the scapula and symptoms would be consistent with this with the exacerbation and damage related to his injuries.
9.        Prognosis.
The prognosis is uncertain. Mr Reeday has the potential to improve further. I do not believe there is any evidence of any inflammatory arthropathy underlying this.
In a report dated 11 March 2014, Dr E Nicoll (T38) diagnosed Mr Reeday as having possible musculoligamentous neck strain or sprain and cervical spondylosis. Dr Nicoll stated that clinical onset was ill specified with first medical attention on this file, 12/1/12, contending an injury on the previous day lifting packs and lifting a locker.
In a further letter to Rheumatologist Dr Edelman on 12 April 2014, Dr Duck writes:
You have seen and assessed Mr Reeday in the past and you were very helpful in elucidating the aetiology and clinical course of his now chronic neck, shoulder and other pains.
Clinically, John is managing adequately, but he finds himself in an invidious and frustrating situation where it has been recommended that he should be discharged from the Army Reserve on medical grounds as a direct result of this pain, yet it has been asserted by one of the experts that he was asked to see that his condition is not due to his military service.
Mr Reeday has suffered this pain only since being injured in January, 2011. The Veteran's Affairs Departmental Medical Officer has listed the following diagnoses to pertain:
Cervical Spondylosis
Thoracic Spondylosis
Lumbar Spondylosis
R L5 Spondylolysis
Lumbar Spine Muscle Strain or Ligamentous Strain
Right Trapezius and Rhomboid Muscle Strain at the enthesis.
You are probably aware that Mr Reeday has been assessed by:
Mr Anthony Cairns (Orthopaedic Surgeon)
Dr Patrick Hanrahan (Rheumatologist)
Their reports are enclosed herewith.
Mr Reeday's contention is that injuries he suffered while he was in the Army Reserve initiated the painful condition that he now suffers and that any pre-existing degenerative condition evinced by later radiological findings (no Xrays were taken while he was in hospital) was entirely asymptomatic.
I concur with Mr Reeday's assertions and with Dr Hanrahan's findings.
Dr Edelman responded on 14 April 2014 as follows:
First of all, there is no systemic inflammatory disease and I guess we have all proven that including Dr Hanrehan.
I note the Veterans’ Affairs departmental officer has started to list every diagnosis he can think of, namely cervical spondylosis, thoracic spondylosis, lumbar spondylosis, L5 spondylosis, and a few muscle strains here and there. The first 4 diagnosis are purely radiological diagnosis. there is no doubt he has mild spondylosis but there were totally and utterly without symptoms til [sic] the incidences that occurs in the army reserve, in January 2011. Therefore the changes on x-ray were completely asymptomatic and have nothing to do with his current symptomatology as such.
Again the date of onset of all of his symptoms is at the time of the original injury in January 2011.
Obviously the injuries in January 2011 made a material contribution to the pain, in that it has caused the pain and he continues to suffer from the pain, because of the injuries from 2011. I would have thought that since it has been there since January 2011, it is permanent.
His history and the findings of the examination are indeed quite consistent with organic pathology that he describes. It is mainly chronic, continuing muscular pain.
I would totally agree with Dr Hanrehan that these symptoms that he has are definitely not due to the natural progression of any condition or disease.
John showed me a letter from the compensation medical advisor which is quite, at least from my point of view abusing. He states that as this gentleman does not have an inflammatory autoimmune type haematological condition, that an orthopaedic surgeon is the appropriate person to see. I doubt whether anyone else would agree with Dr Nicholl on a statement like this. Rheumatologist spend most of their time seeing soft tissue injuries, osteoarthritis, and various other injuries; if I am not mistaken, orthopaedic surgeons spend more than 75% of the time in theatre which indeed would make them less qualified to talk about strains and sprains. Again there is no way these symptoms in any case are due to degenerative conditions.
Dr Duck provided a further medical report dated 23 March 2015 that provides as follows:
Cervical/Thoracic/Lumbar Condition
This is to advise that I have been Mr Reeday's Treating General Practitioner since 21 January, 2011 until 5 May, 2014 and I have been in regular contact with him to discuss relevant issues since 5 May 2014. He had incurred injuries to his vertebral column, paravertebral muscular/associated tissues and his right scapular in at least two incidents earlier in January 2011 while training in an Army Reserve Unit.
Due to the above incidents he was transported via ambulance to an Army hospital and admitted for one week. No imaging was undertaken.
I have carefully analysed his service medical records, imaging results, clinical notes and conducted physical examinations. The following diagnoses are evident:
•        Strain of the Cervical Spine
•        Strain of the Thoracic Spine
•        Strain of the Lumbar Spine
•        Cervical Spondylosis
•        Thoracic Spondylosis
•        Lumbar Spondylosis
•        Right L5 Spondylolysis
Mr Reeday's strain of the Cervical, Thoracic and Lumbar Spine Muscles are the cause of his ongoing pain. This pain is ongoing: it has not resolved despite a contrary comment by Dr Cairns (Orthopaedic Surgeon).
The above opinion is clearly supported by Dr Edelman (Rheumatologist) in a detailed report dated 14 April 2014.
Mr Reeday's strain to the Cervical Thoracic and Lumbar Spine Muscles is clearly directly related and caused by the trauma in January 2011 whilst he was performing his Army Reserve duties.
Mr Reeday's mild Spondylosis and Spondylolysis are incidental Radiological findings as they were completely asymptomatic at the time of the trauma in January 2011.
Again the above opinion is clearly supported by Dr Edelman (Rheumatologist).
Dr Edelman provided a further report dated 1 April 2015 as follows:
This gentleman saw me again today showing me the opinion of the review board. My opinion does not change from the 14^th of April 2014. This gentleman’s cervical thoracic and lumbar spondylosis is mild and it is a pure x-ray diagnosis. Before his soft tissue injuries he was running and exercising without a problem.
The injury occurred in January 2011 producing his current pain syndrome.
It is in my opinion the same as it is for his GP and that of Dr Hanrehan that he has chronic continuing muscular pain. The pain is in the cervical thoracic and lumbar areas. It is soft tissue in nature and has not resolved. I would not agree with Dr Cairns that it has resolved.
As everybody is fully aware the strain and muscular symptoms began due to the trauma that occurred in January 2011 when he was in the Army Reserve.
If we go back to my letter on the 14^th October 2013, I stated that this is mechanical in nature. Obviously I mean it is not due to the spondylosis but it is due to a muscular problem. The use of the word ‘mechanical’ for me at that point of time was to indicate this was not due to the discs and small joints of the back, but due to the soft tissue and muscles surrounding the areas.
In a supplementary report dated 28 July 2015, Dr Cairns concluded:
(a)There is no reason to change his opinion as previously expressed.
(b)The Applicant’s diagnoses are:
(i)Cervical spondylosis.
(ii)Thoracic spondylosis.
(iii)Lumbosacral spondylosis.
(iv)Constitutional, multi-segmental intervertebral disc degeneration.
(v)Minor enthesopathy (involving the right scapula and muscle attachments).
(c)The claimed conditions derive from constitutional, multifocal degenerative changes and inflammatory processes unrelated to the Applicant’s military service.
Dr Cairns’ summary and assessment provides as follows:
In summary therefore, this now 43.10 year-old public servant confirms the alleged history of injuries sustained to his neck, right shoulder, thoracic and lumbar levels of his spinal column in incidents during recruit training on 8 January 2011 (low back), and 11 January 2011 (neck, right shoulder and low back), the documents recording the injuries as “strains”, the service clinical records suggesting that the various injuries were of a “strain” nature, the inpatient record summary of 18 January 2011 stating, “there was no signs of significant injury to the lower back, and right upper parathoracic region”.
Based on my current review of the claimant, I see no reason to change my opinion as previously expressed.
Therefore, in response to the matters raised within your referral of 14 July 2015, I have the following answers to offer:
Schedule of Questions:
3.1What history of the claimed condition did the Applicant give at the examination? Please obtain details of any specific incidents reported by the Applicant during the course of his military employment
The history of the claimed condition provided by the applicant at the time of initial assessment on 5 August 2013, is as described within my report of 19 August 2013 at “Mechanism of Alleged Injury/Sequence of Events”, and updated and confirmed by the claimant within the foregoing report at “Progress Since Last Assessment”.
The alleged specific incidents reported by the applicant during the course of his military employment are as described in the report of 19 August 2013.
3.2 What condition(s) does the Applicant currently suffer from?
The applicant currently reports ongoing impairment as described within the foregoing report at “Current Status”.
My findings on clinical examination of the alleged symptomatic areas are as described within my report of 19 August 2013 at paragraph “Physical Examination”, and those apparent on physical examination at the time of this review assessment on 21 July 2015 as updated within the foregoing report.
Diagnoses:
(I)Constitutional, multi-segmental intervertebral disc degeneration, cervical, thoracic and lumbosacral spondylosis.
(II)Minor enthesopathy right scapula.
3.3Having regard to the further material provided, and in particular the reports of Dr Duck and Dr Edleman, do you have any cause to change any of the opinions expressed in your report dated 19 August 2013?
Based on my review of the further material provided, in particular the reports of doctors Duck and Edleman, l have no cause to change any of the opinions expressed in my report dated 19 August 2013.
3.4Please provide the reasons for your answer to question 3.3, whether your opinion remains unchanged or otherwise.
My opinion is based upon the history provided by the claimant, my findings on physical examination on 5 August 2013 and 21 July 2015, and the relevant reported imaging investigations.
I have specific observations to make regarding statements made by Dr Edleman in his letters to Dr Duck of 14 October 2013 and 14 April 2014, and that to Mr Reeday of 1 April 2015 as follows:
Letter 14 October 2013:
At para 2, Dr Edleman erroneously states that following my assessment of the claimant on 5 August 2013,1 “suggested that he has an undiagnosed systemic inflammatory disorder”.
The statements made were in fact at my response to question 1, page 10, wherein I stated, inter alia, “it is noted that despite his multi-focal musculoskeletal complaints, there does not seem to have been any investigation of possible systemic inflammatory disorder”, and at response to question 3 I have stated, “I believe that the widespread nature of his complaints justifies further investigation to exclude an as yet undiagnosed systemic inflammatory disorder”.
I believe that it is self-evident that I did not suggest “that he has an undiagnosed systemic inflammatory disorder”.
I also believe that because of the multifocal nature of his complaints, such a recommendation was justified on clinical grounds.
Dr Edleman goes on to state, “I am sure that it is undiagnosed because it does not exist”. I appreciate Dr Edleman’s opinion. The retrospective trivialisation in hindsight, and with the benefit of the investigations seems somewhat petty and unjustified.
However, he goes on to state that “all of this is mechanical in nature and his knees and feet are unrelated to his other problems”. The use of the word of “mechanical” is interesting in that non-specific, “mechanical” spinal pain is more often than not related to underlying degenerative changes involving the intervertebral discs and related structures.
In his letter of 14 April 2014, Dr Edelman offers the observation that the diagnoses of spondylosis are purely radiologically based. I suggest that someone who presents with obvious non-specific, mechanical spinal pain who is then shown to have multi-segmental intervertebral disc degeneration and related pathology, with history and clinical findings consistent therewith, the diagnosis is not merely “radiological”.
In my opinion, the observation that prior to the index incidents “these were totally and utterly without symptoms” is irrelevant, and entirely dependent on the subjective report of the witness.
This is because by his description of the mechanism of the provocative incidents, it is, and was reasonable at the time, to attribute the injuries to “soft tissue, musculoligamentous strains”, as was opined at the time of initial medical assessment.
I note with some bemusement Dr Edelman’s statement in the final paragraph of his letter to Dr Duck on 14 April 2014:
“Rheumatologists spend most of their time seeing soft tissue injuries, osteoarthritis, and various other injuries; if I am not mistaken, orthopaedic surgeons spend more than 75% of the time in theatre which indeed would make them less qualified to talk about strains and sprains”.
With respect, I suggest that this statement is somewhat fatuous and borders on ridiculous. I would suggest that in a clinical setting, the average orthopaedic surgeon sees more “strains and sprains”, than the average rheumatologist.
...
I also note Dr Edleman’s repeatedly expressed opinion that Mr Reeday presents with “mainly chronic, continuing muscular pain”.
Conversely, he also offered the opinion that the pain is “mechanical”, to which he subsequently offered a further clarification.
With respect, I suggest that in the overwhelming number of instances muscle, tendon, or ligamentous “strains” or “sprains”, heal and resolve within a comparatively short period of time.
I also note, with interest, that Dr Edieman also proffers the opinion that Mr Reeday is suffering from “his current pain syndrome”, attributed to “chronic continuing muscular pain”.
With respect, I suggest that “pain” is a symptom, not a diagnosis.
I also note that Dr Edelman has been effusive in promoting his opinion that Mr Reeday is suffering from “pain”, but does not offer a specific diagnosis other than “current pain syndrome”, and causation attributed to muscular or soft tissue origin, which I repeat, in my opinion in the vast and overwhelming number of instances all heal within weeks or months of the injury and do not result in long-term impairment, other than in the instances of specific diagnoses such as rotator cuff tear, acromioclavicular joint strain, Achilles tendonitis, plantar fasciitis, epicondylitis, and various other well recognised clinical entities, but not including the all encompassing “current pain syndrome”.
Finally, I would suggest that an individual who presents with symptoms consistent with mechanical spinal pain, who has subsequently been demonstrated to have multi-segmental intervertebral disc degeneration and related pathology, spondylosis, justifies that diagnosis, in the absence of any logical, sustainable alternative diagnosis.
With respect, I suggest that a muscular, tendinous or ligamentous strain sustained in January 2011, on the balance of probabilities as distinct from possibilities, is unlikely to remain symptomatic some 4½ years later.
[Emphasis in original]
3.5Does the Applicant suffer an underlying, pre-existing or constitutional condition relevant to the claimed condition(s)? If so, what is the nature of this condition and why did it arise?
I have previously clearly expressed the opinion that the applicant suffers an underlying, constitutional degenerative condition relevant to the claimed conditions, specifically multi-segmental spondylosis, which results from normal ageing, constitutional and degenerative processes.
l also note that I have expressed the opinion that Mr Reeday presents with “manifestations of biopsychosocial potentiation” (response 3, page 10, report 19 August 2013).
3.6In your opinion, has the diagnosed condition(s) you described in 3.2, arisen out of, or was attributable to, any defence service rendered having regard to the relevant Statements of Principle (SoP) (enclosed). Please explain your answers.
I have noted the relevant Statements of Principal enclosed within your referral.
Notwithstanding, I remain of the previously expressed opinion that “the claimed conditions derive from constitutional, multifocal degenerative changes and inflammatory processes unrelated to his military service, apart from that involving his right scapula which, although historically provoked by the service-related incident, may well be ongoing related to the minor mechanical anomaly apparent on clinical examination”.
I believe that the underlying explanation for this response is addressed both within the above report and that of 19 August 2013.
3.7If you consider the Applicant has suffered or does suffer from an injury which arose out of, or in the course of, his military employment:
(a)Have the effects of the work related condition ceased, and if so, when 7
(b)If they have ceased, what current symptoms continue to be contributed to by his military employment?
In my opinion, it is reasonable to accept that the applicant suffered soft tissue, muscuioligamentous strains in the cited incidents. However, also in my opinion:
(a)The effects of the work-related condition ceased, likely within no more than three to four months of the index incidents.
(b)Based on that opinion, I do not accept that any of his current symptoms continue to be contributed to by his military employment.

Dr Duck provided a further report dated 13 September 2015 as follows:
Mr Reeday has been assessed by a number of consultants and continues to suffer vertebral and paravertebral pain while being involved in ongoing proceedings directed by Department of Veterans' Affairs. So far these proceedings have not resulted in a final or fair outcome for Mr Reeday. There seems to be disagreement between some of the consultants he has seen.
I provide this report in the hope of elucidating his current status and, perhaps expediting a just resolution of any dispute about his condition.
I was Mr Reeday's treating General Practitioner from 21 January, 2011 until 05 May, 2014 and have had regular discussion with him about his health since then. I hold specialist qualification in Occupational, Nutritional and Environmental Medicine and in Acupuncture and Hypnosis.
…
His Vertebral, Paravertebral and especially his Cervical and Right Scapular pain have never completely abated and, although he can manage most activities of daily living, he has not been able to return to his pre-injury recreational and sporting activities: he used to run 35km per week and attend a gymnasium for a solid work-out 4-5 times a week. His partner now helps with washing and hanging out of his clothing. His workstation has been modified so as to be more erganomically [sic] matched to his condition.
Mr Reeday has had no major medical or surgical problems in his past, but when he was running a lot he developed shin splints, plantar fasciitis and chondromalacia patellae. (These conditions have been accepted by DVA as Service related for treatment purposes). With judicious rest and the use of appropriate orthotics his symptoms from these conditions have been quiescent.
Importantly and notably, Mr Reeday had never had any Cervical, Thoracic, Lumbar or Scapular pain before the injurious events of January, 2011.
Further, he has sworn a Statutory Declaration to that effect on 26 July, 2013.
I have seen Mr Reeday's Medicare Claim History from August 2006 to August 2011; his visits to doctors were very few and quite separated in time during in the whole five years before these injuries and coming to see me.
Mr Reeday first saw me on 21 January, 2011. I considered that his problems were mainly caused by strain injury to soft tissues: muscles, tendons, ligaments and entheses, with some facet joint sprain and co-contraction headaches. On examination, there was no evidence of bone injury, disc injury or radiculopathy, nor of any significant underlying arthropathy.
The history Mr Reeday relates is that of a mechanical rather than inflammatory condition: he has constant background pain but his more significant pain is intermittent, made worse by certain movements and relieved by others and associated with tenderness especially over trigger points in the left sterno-cleido-mastoid muscle and nearby muscles in the left of the neck; the pain is similar around the right scapula and especially affects the muscles and entheses on the medial aspect of the scapula – chiefly the Rhomboides.
The term "Mechanical" seems to have caused some confusion in reports relating to Mr Reeday's condition. What I understand mechanical to mean is the clinical presentation I have just described and which is usually brought on by direct trauma – as in Mr Reeday's case (strain and/or sprain) – and/or by postural dysfunction, less commonly by overuse or repetitive strain, etc. and opposed to inflammatory or chemical pain which tends to be more constant, worse in the morning and associated with stiffness and more commonly precipitated by overuse or repetitive strain or underlying inflammatory disease and perhaps less commonly by direct trauma.
When I first saw Mr Reeday his conditions were, by temporal definition, still acute strains and probably sprains. The pain was temporarily relieved by acupuncture, but no lasting or permanent relief was able to be achieved and the pain has become, by temporal definition, chronic.
One of the orthopaedic specialists to whom the Department of Veterans' Affairs referred Mr Reeday has made suggestions which, to me, are surprising:
“..., I suggest that in the overwhelming number of instances muscle, tendon, or ligamentous “strains” or “sprains” heal and resolve within a comparatively short period of time.”
“..., I suggest that a muscular, tendinous or ligamentous strain sustained in January 2011, on the balance of probabilities as distinct from possibilities, is unlikely to remain symptomatic some 4½ years later.”
The orthopaedic specialist quoted has detailed considerable personal experience which should probably be ruled Out of Order on grounds of relevance and has also detailed an impressive C.V. in the treatment of elite sportsmen, but I suggest that, perhaps, therein lies the rub. There is selection bias in considering only elite athletes and their recovery time from strain/sprain. Their motivations and pre-injury health, condition and fitness are entirely different to other injured persons. There is no comparison that can reasonably be made to the normal population where a great deal of neck pain and low back pain – perhaps most – becomes chronic, as every General Practitioner or Occupational Physician knows.
…
No radiology is or was necessary to reach the diagnosis of soft tissue strain but, almost inevitably, when a patient is in a compensation system and being redirected to many practitioners, someone will order Xrays, CTs, etc. Mr Reeday had CT of his whole vertebral column in May, 2011. The diagnoses that have been attached since these seem to have led to obfuscation or disagreement between the specialists consulted. There is some evidence of Spondylosis at the Cervical, Thoracic, and (Lumbar levels.
Spondylosis – osteoarthrosis of the vertebral column – is usually referred to as degenerative/wear-and-tear/age related changes in the intervertebral joints. I, and some of my Occupational Medicine colleagues think of the changes more as postural remodelling. The important thing in Mr Reeday's case is that the Xray evidence of mild Spondylosis is unlikely to be the cause of any of the symptoms that Mr Reeday evinced after his injuries. He had no symptoms of Spondylosis before the injuries: no vertebral pain or restriction of movement. It is possible that the ligaments of some of the facet joints that show arthritic change on CT were sprained during the lift and twist incidents or the jumping from the truck but, if this is so, it is the sprain that is the cause of the pain more than the arthrosis. This why Dr Edelman has described the diagnosis of Spondylosis as "a pure Xray diagnosis" – I know what he means and, with the rider that little is "pure" in Medicine, I concur.
That said, I take issue with the Veterans' Affairs Minute from South Australia, dated 17 June, 2011 and signed by Dr Spedding. The minute purports to relate to a CT scan report which I assume is supposed to be the one reported on scans done at Sterling Radiology on Mr Reeday on 07 May, 2011. I cannot line up the statements of fact with the copy of that report in my possession: the Minute states "The report includes the words "suspected" "slight, early, shallow, minimal , or small"" The grammar is not good, but I am sure that the word "and'' was meant to have been used rather than "or", meaning, I expect, that all those words are in the report. I have read my copy carefully and cannot find the words suspected, early or minimal there at all. We all expect the findings to be mild/shallow/small especially if they are age related: Mr Reeday was 39 at the time of the scans .
The radiologist does not equivocate over "C3/4 Left side uncovertebral lipping with left foraminal stenosis and left C4 nerve root compromise'' which I would think significant and perhaps before its time if these findings are age related. Findings at the next two disc levels are "moderate". The worry in a minute which relates the reading of three (loaded) words which are not actually there is that the opinion was not formed carefully enough and that the report may well have been read with bias or preconceptions. I did not see the need to perform a CT scan but I was happy with the report and do not feel the need that Dr Spedding expresses for radiologists to explain more or tell less to me as a GP.
So, I find Dr Spedding's opinion irrelevant, not based on fact. Further I can imagine a twisting motion under an unstable load perhaps aggravating radicular, inflammatory or mechanical pain at the site of a C4 nerve root compression. It must also be pointed out that "the member" complained only of lumbar pain after "lifting packs into the back of a truck" the cervical and thoracic and periscapular pain came after the incident carrying a metal locker up stairs, the load becoming unstable causing twisting motions and dropping of a heavy load – on 11 January, 2011, I have stated elsewhere in this report that I (in fact all Mr Reeday's treating physicians) did not regard the spondylosis as the main source of his pain.
The CT did show some nerve root compromise at C4 on the left and possible compromise bilaterally at C5. Mr Reeday's neck pain occurs in a L C4 dermatome distribution, so the radiculopathy may contribute to his pain, and nerve root pain can be precipitated by injuries such as he incurred. However, his neck pain is characterised by sternocleidomastoid tenderness and tender trigger points in the platysma and upper trapezius and I believe muscle strain is the primary diagnosis in Mr Reeday's neck.
So, in summation, Mr Reeday suffers:
Chronic Cervical Strain/Sprain
Chronic Thoracic Strain/Sprain
Chronic Lumbar Strain/Sprain
Enthesopathy of Right Periscapular Muscles.*
These were caused as a direct result of the injuries he suffered on 08 and 11 January, 2011. These findings are completely in accord with the Repatriation Medical Authority Statement of Principles concerning Sprain and Strain No 95 of 2011 for the purposes of Military Rehabilitation and Compensation Act, 2004 etc.
*This diagnosis was confirmed by another Orthopaedic Surgeon to whom Mr Reeday was referred and who attested after clinical and radiological investigation, that the shoulder condition was "muscular" and that neither he nor his orthopaedic colleague felt they could offer any surgical solution. This surgeon reinforced the assertion that there was no bone or bursal abnormality.
CT scans have revealed, also:
Spondylosis of the Cervical Spine
with evident compromise of the L CS nerve root and possible compromise of the C5 nerve roots and with some facet joint arthropathy
Spondylosis of the Thoracic Spine
with small disc bulge at T9-10
and with mild facet joint arthropathy at lower than T9
Spondylosis of the Lumbar Spine
with disc bulges at the lower three levels
and with facet arthropathy
and with a R L5 pars interarticularis defect
These radiological findings would have been present at the time of Mr Reeday's injuries and were not caused by the injuries. Some of the joints seen to be affected by these "degenerative" changes may have become painful if there was ligamentous sprain at the time of injury.
Finally, the Tribunal received a further report from Dr Edelman dated 16 September 2015 that provided as follows:
My opinion that I expressed on the 1st April 2015 still stands.
He showed me a long report from Dr Anthony Cairns.
Needless to say, I am sure that we can state that this gentleman does not have a systemic inflammatory disorder.
The changes on this gentleman’s CT scan are quite minor and consistent with age related changes. They were there when he was without symptoms and now he has symptoms so again I really do not think that they are contributing.
I still believe these to be soft tissue in nature.
What is more interesting to me is the fact that he now has published data from the Veterans Affairs that actually state that the New Statement of Principles concerning sprain and strain does include a service related discreet injury that persists beyond the initial acute phase. There are also repatriation statements more or less to the same statement.
I still think that Rheumatologists spend more time than Orthopaedic Surgeons seeing soft tissue problems but I am not going to get into an argument about this. I would hope that the average Orthopaedic Surgeons spends more of his time doing joint replacements and time in theatre. However I do not think that this even comes into the argument as from the statements from Veterans Affairs, the sprain and strain and soft tissue which surely have to be allowed to be chronic in any case.
Many soft tissue or muscular problems do not heal or disappear within weeks or months. I guess the perfect expel would be a whiplash or even a soft tissue injury to the low back. These can go on for years, granted nobody really knows why but they do. Often these are then diagnosed as a chronic pain syndrome which is terminology that is perfectly accepted.
I note the words bio-psychosocial potentiating which I assume Mr Cairns says there is a supra tentorial overlay. I guess this is quite likely bearing in mind what is going on here that is the continual fighting and being at loggerheads with the Veterans system.
It is still my view that this is not related to any degenerative condition, this was the view of Dr Hanrahan as well and his GP.
It is interesting that there is a report by Dr Simon Spedding given in June 2011 where he comments on the fact that the CT scan of Mr Reedy shows some early minimal changes the same as it does now and states that 50% of asymptomatic individuals are reported to show these findings.
He was asked by" Veterans Affairs to give the opinion and he states that this gentleman’s symptoms were not due to any degenerative changes but were due to those of the sprain.
Mr Reeday’s Various Claimant Reports
Mr Reeday provided the Tribunal with a Claimant Report for Shin Splints dated 29 March 2014. It provides:
Report Detail
1.Shin splints may be caused or aggravated by a sudden increase in the frequency, duration and intensity of weight bearing exercise. Is there a history of such a sudden increase in weight bearing exercise involving the affected leg(s)?
ðNo- please sign the form and return it to the Department
þYes
2.Please describe the weight bearing exercise undertaken in the lead up to the sudden increase and then describe the weight bearing exercise at the time of the sudden increase in frequency, duration, and intensity of the weight bearing exercise: (attached a separate sheet it necessary)

Description of weight bearing exercise before the sudden increase Dated of sudden increase Description of weight bearing exercise at the sudden increase Reason for sudden increase in weight bearing exercise

RUNNING AND JOGGING FOR FITNESS EARLY DECEMBER 2010 SPRINT WORK PREPERATION [sic] FOR FITNESS TEST (BEEP TEST) KAPOOKA

In relation to his lifting injuries (as they pertain to the 35 kg requirement specified by the relevant SOPs), Mr Reeday provided various Claimant Reports, as follows:
Applicant’s Claimant Report – Carrying or Lifting Loads dated 14 February 2015 (A6)
2.Details of loads of at least 25 kg that were lifted or carried during your lifetime: (include both service and no-service activities)

Period

Describe the load being lifted

Weight of the load

Frequency the load was lifted e.g twice a day

Length of time the load was lifted/carried on each occasion e.g. 2 ½ hours

Activities being carried out when load was lifted/carried

/01/09 to /05/10 4 times p/w

Gym Work

40kgs

10 times

400 kgs p/d

1600 kgs p/w

116800 kgs total

Gym work

/01/09 to /05/10 4 times p/w

Gym Work

60kgs

10 times

600 kgs p/d

2400 kgs p/w

175200 kgs total

Gym work

/01/09 to /05/10 4 times p/w

Gym Work

80kgs

10 times

800 kgs p/d

3200 kgs p/w

233600 kgs total

Gym work

/06/10 to /08/10 4 times p/w

Gym Work

40kgs

12 times

480 kgs p/d

1920 kgs p/w

15360 kgs total

Gym work

/06/10 to /08/10 4 times p/w

Gym Work

60kgs

12 times

720 kgs p/d

2880 kgs p/w

23040 kgs total

Gym work

/06/10 to /08/10 4 times p/w

Gym Work

80kgs

12 times

960 kgs p/d

3840 kgs p/w

30720 kgs total

Gym work

Claimant Report – Running on the Foot – Plantar Fasciitis dated 14 February 2015
2. Details of loads of at least 25 kg that were lifted or carried during your lifetime: (include both service and no-service activities

Period

Describe the load being lifted

Weight of the load

Frequency the load was lifted e.g twice a day

Length of time the load was lifted/ carried on each occasion e.g. 2 ½ hours

Activities being carried out when load was lifted/carried

/01/09 to /05/10 4 times p/w Gym Work 40kgs 10 times 400 kgs p/d
1600 kgs p/w
116800 kgs total Gym work

/01/09 to /05/10 4 times p/w Gym Work 60kgs 10 times 600 kgs p/d
2400 kgs p/w
175200 kgs total Gym work

/01/09 to /05/10 4 times p/w

Gym Work

80kgs

10 times

800 kgs p/d

3200 kgs p/w

233600 kgs total

Gym work

/06/10 to /08/10 4 times p/w

Gym Work

40kgs

12 times

480 kgs p/d

1920 kgs p/w

15360 kgs total

Gym work

/06/10 to /08/10 4 times p/w

Gym Work

60kgs

12 times

720 kgs p/d

2880 kgs p/w

23040 kgs total

Gym work

/06/10 to /08/10 4 times p/w

Gym Work

80kgs

12 times

960 kgs p/d

3840 kgs p/w

30720 kgs total

Gym work

/08/10 to /12/10 5 times p/w

Gym Work

50kgs

20 times

1000 kgs p/d

5000 kgs p/w

95000 kgs total

Gym work

/08/10 to /12/10 5 times p/w

Gym Work

80kgs

20 times

1600 kgs p/d

8000 kgs p/w

15200 kgs total

Gym work

/08/10 to /12/10 5 times p/w

Gym Work

100 kgs

20 times

2000 kgs p/d

10000 kgs p/w

190000 kgs total

Gym work

Applicant’s Claimant Report – Lifting loads whilst in Army Reserves dated 18 August 2016 (A7)
2. Details of loads of at least 35 kg that were lifted or carried during your service:

Period

Describe the load being lifted

Weight of the load

Frequency the load was lifted e.g twice a day

Total

Activities being carried out when load was lifted/carried

/8/10 to /12/10 1 day per fortnight

Lifting Truck Tyres, Lifting Jerry Cans, Box Lift and Place, Lifting Logs, Chin ups

40kgs

40 times per day

12800 Kgs

Physical Training at Army Reserve Unit. Position Rifleman.

8/10 to /12/10 1 day per Month

Loading and Unloading General Stores/Supplies

40 kgs

30 times per day

4800 kgs

Army Reserves Unit Duties. Position Rifleman.

/9/10 to /9/10

2 Days

Loading and Unloading Kits/Supplies

40 kgs

20 times per day

1600 kgs

Army Reserve Unit Duties. Performing Navigation Training. Position Rifleman.

/8/10 to /12/10 5 Days Per Week

Weight Training. Military Rows

50 kgs

20 Times Per Day

95000 kgs

Personal Training To Meet Army Standards

/8/10 to /12/10 5 Days Per Week

Weight Training. Dead Lifts

80 kgs

20 Times Per Day

152000 kgs

Personal Training To Meet Army Standards

/8/10 to /12/10 5 Days Per Week

Weight Training. Clean and Jerk

100 kgs

20 Times Per Day

190000 kgs

Personal Training To Meet Army Standards.

Mr Reeday was examined and cross examined extensively in relation to what he claims is his heavy lifting history and its relevance to the SOPs in issue before the Tribunal.
In that regard, the Tribunal notes Mr Reeday’s oral evidence in examination in chief in relation to this issue as follows:
MR LARTER: … you enlisted in the Army Reserve in May 2010, and you increased your fitness as per your claimant reports. Would you be able to please explain the actual fitness regime that you did, to the tribunal, please?
MR REEDAY: I officially enlisted in the Army Reserves on 9 August 2010, and I had my entry medical in May 2010. And it was noted that, on 11 May 2010, I had elevated cholesterol and I needed further eye testing. I had my supplementary blood test on 20 July, and to reduce my cholesterol reading, which was 7.3 on 11 May, to 5.7 on 20 July, I increased my fitness regime. I had commenced my running 25 kilometres per week in February 2010, and had increased my running in June 2010, to ensure that my cholesterol readings was reduced. And also increased my weightlifting in the gym, to make sure that my fitness and my cholesterol readings were below the required threshold, which there was a 22 per cent reduction in my cholesterol reading, and that was noted by my then-GP, Dr Westoff, the recent diet and exercise changes that I implemented to ensure that I satisfied the fitness requirements for the military.
MR LARTER: Thank you. Can you please explain the gym activity that you’re doing specifically around the claimant report of lifting over 35 kilograms?
MR REEDAY: Yes. I’ve completed two claimant reports. One was my totality of lifting items 35 kilos and above. I commenced my gym work in January 2009. There were some lift-changing events that took place in August ‘08. I separated from my wife and my daughter, and I made a commitment to myself that I wanted to get fit and health. And also I obtained my driver’s licence for the first time. So in the lead-up to commencing my gym work in January ‘09, I had a partner who was extremely fit and took me to the gym. It’s my first time at the gym, and I commenced doing my gym work. I enjoyed it. It was new but I enjoyed it. It was difficult but I enjoyed it. And once I got my licence, again as I said, for the first time, it was issued to me on 7 October 2010, I wanted to join the military, and made inquiries in the new year to join the military. So in February 2010, I commenced my running regime, as indicated on my claimant report. I increased my running due to my elevated cholesterol readings, which were subsequently reduced, and ultimately enabled me to be enlisted in the military. And subsequently increased my running, again in August 2010, after I officially enlisted in the military. With my gym work, I started in January ‘09. Again, increased my weight-lifting in June 2010, as a result of the elevated cholesterol readings, and subsequently increased that again when I officially enjoined the military in August 2010.
MR LARTER: You submitted a claim for plantar fasciitis and shin splints, to the MRCC. Is that correct?
MR REEDAY: That’s correct.
MR LARTER: Was that decision – can you tell me about that? Those two conditions, and the decision by the MRCC? ….
…
MR LARTER: Your time in the Army Reserve, when you actually paraded and put your Army uniform on, can you please explain to the tribunal the things and the activities that you would do, specifically focused around the lifting that relates to your claimant report?
MR REEDAY: Yes. We did PT. We did a lot of – basic PT was, like, lifting truck tyres.
DEPUTY PRESIDENT: When you say PT, you mean personal training?
MR REEDAY: Yes, Deputy President.
MR REEDAY: Doing – lifting truck tyres. We were doing jerry can lifts. Doing a lot of chin-ups, and doing a lot of exercises before the official commencement of the parading. So we had a lot of chin-up exercises and tests between us, as warranted by Captain Tindale at the time. When I was in Bindoon doing the navigation training, I did a lot of lifting of the supplies for the two days at Bindoon. And the issue of parading and PT, whilst it was limited because it was once every Tuesday, that’s why I supplemented my personal fitness regime, because of the lack of parades in the military, which was once every Tuesday. So, in essence, it was the jerry can lifts, lifting the truck tyres, supplies for the battalion.
MR LARTER: I would like to actually break down the activities now. You’ve mentioned lifting truck tyres, jerry cans and chin-ups and so on. Was part of your training when you were in the field, were you actually carrying your field pack, webbing and rifle at the time you would do these exercises?
MR REEDAY: We didn’t have a rifle in Bindoon. It was basically navigation training. So the lifting I was performing during the Bindoon exercises was mainly supplies. We certainly didn’t have any rifles.
MR LARTER: So as you were lifting the jerry can, were you carrying your field pack with supplies in that pack?
MR REEDAY: That’s correct.
MR LARTER: That’s how you get to your total of above 35 kilograms, because you’re carrying your field pack which is a set weight – and we’ll talk about estimates of weights – and then you were saying you’d pick up a jerry can. Was the jerry can full?
MR REEDAY: Yes.
MR LARTER: Of?
MR REEDAY: Of liquid.
MR LARTER: Of liquid of some sort?
MR REEDAY: Yes.
MR LARTER: Okay. Right. So that’s where we get to the fact – and lifting the truck tyres, because you explain in your PT, physical training, in the field, when you’re carrying your pack, is that attributed to lifting the tyres and so on, as you explained?
MR REEDAY: Yes, it’s all part of the expectations.
MR LARTER: Of the lifting?
MR REEDAY: That’s correct.

Prior to dealing with a possible service connection, an accurate diagnosis needs to be established. This is to be shown on the balance of probabilities, irrespective of the type of service rendered by an Applicant (note 2(b) to s 23(1) of the MRC Act).
The Commission has contended that the medical diagnoses made by Dr Cairns in his reports as they pertain to any actual conditions should be accepted by the Tribunal.
The Tribunal agrees.
Dr Cairns, in his reports dated 19 August 2013 and 28 July 2015, diagnosed Mr Reeday with thoracic spondylosis and lumbar spondylosis. In his oral evidence before the Tribunal Dr Cairns maintained that opinion and stated that the basis for his opinion was the radiology report dated 7 May 2011 and Mr Reeday’s self-reported symptomology. Dr Cairns reports were extensive and detailed, objective and he did not alter his conclusions when cross examined.
Dr Cairns had regard to the radiology report of 7 May 2011 in formulating his opinion on diagnoses of those two conditions. As such, the date of onset of Mr Reeday’s two remaining conditions should be taken to be 7 May 2011. This submission is consistent with the authorities of Re Robertson and Repatriation Commission (1998) 50 ALD 668 and Repatriation Commission v Cornelius [2002] FCA 750. Mr Reeday, in written closing submissions at paragraph 10, agreed.
On the evidence, the Tribunal thus finds that Mr Reeday has been diagnosed with both thoracic spondylosis and lumbar spondylosis and that the clinical date of onset for both conditions is 7 May 2011.
Applicable Statements of Principles
The next issue is to determine, for each condition, whether the available material raises a connection between the conditions in question and some particular defence service rendered by Mr Reeday and whether there is in force a SOP that upholds the contention that the claimed condition is connected with that service (s 339 of the MRC Act).
The relevant SOP for lumbar spondylosis is ‘Statement of Principles concerning Lumbar Spondylosis No.63 of 2014’ (the ‘lumbar spondylosis SOP’).
The relevant SOP for thoracic spondylosis is ‘Statement of Principles concerning Thoracic Spondylosis No.65 of 2014’ (the ‘thoracic spondylosis SOP’).
Paragraph 6 of both SOPs sets out the factor or factors that must exist before it can be said that the spondylosis conditions are, on the balance of probabilities, connected with the circumstances of the applicant’s relevant service.
Mr Reeday relies on factor 6(i) of the lumbar spondylosis SOP and factor 6(h) of the thoracic spondylosis SOP which are in the same terms (but for the reference to “lumbar spine” and “thoracic spine”, as applicable):
Lifting loads of at least 35 kilograms while bearing weight through the lumbar/thoracic spine to a cumulative total of at least 168,000 kilograms within any ten year period before the clinical onset of lumbar/thoracic spondylosis, and where the clinical onset of lumbar/thoracic spondylosis occurs within the 25 years following that period...
This is the only SOP factor that Mr Reeday relies on.
In relation to this issue, the Commission relevantly contended as follows in written closing submissions dated 20 April 2017:
3.22The respondent submits that the SoP factors that the applicant relies upon have not been met. In particular the respondent submits that the available material does not raise a connection between the condition and the applicant’s defence service because:
(a)The only evidence that the applicant relies on are two Lifting Questionnaires – the first dated 14 February 2015 and the second dated 8 August 2016. Both documents were prepared at least six years after the applicant says he performed the relevant lifting.
(b)As stated in cross-examination, he relied entirely on his memory in completing Exhibits A6 and A7, yet his memory was demonstrated to be fallible. For example, he was unable to recall whether he took any time off work at all during the years 2009 and 2010 and, when completing Exhibit A2 on 20 May 2010 he stated that he commenced attending the gym in 2008. He accepted in cross-examination that the reference to 2008 was wrong and should have been 2009. This demonstrates that he was mistaken when recalling past events in a document that was being completed only two years after that event.
(c)In cross examination, the applicant said that he had never done any lifting prior to January 2009 and that all of his lifting occurred between January 2009 and December 2010, as outlined in Exhibits A6 and A7. He was pressed on this issue and maintained that he had never done any lifting prior to January 2009. Despite this, in re-examination he changed his evidence to be that he hadn’t not engaged in any lifting prior to January 2009 but that when he did, the weight he was required to lift was less than 25kg and therefore, didn’t need to record it in lifting questionnaires.
(d)His evidence about the amount of weight he lifted, consistently since January 2009, was also implausible. According to his evidence, he went from being “unfit and flabby” to, on the first day of ever attending a gym, undertaking significant lifting exercises, including performing a ‘clean and jerk’ which involved lifting 80kg above his head ten times, performing ‘deadlifts’ with a weight of 60kg ten times, and performing ‘military rows’ with a weight of 40kg ten times. When given the opportunity in cross examination to explain that he may have “gradually worked up” to the amount of lifting referred to in Exhibits A6 and A7, the applicant still maintained that he commenced performing the lifting referred to therein from the very first day that he attended the gym.
(e)In cross-examination it was highlighted to the applicant that there was a 20kg difference between the maximum weight of the packs that he was required to lift in September 2010 and then in January 2011 at Kapooka, yet no explanation was given for how that could possibly be so. That the weight of the packs was double during the period prior to when his basic Reserve training commenced was unexplained.
(f)In relation to Exhibit A7, in cross-examination, the applicant explained that each and every item referred to therein, weighed exactly 40kg. That is, even collections of various “stores/supplies” that all individually weighed less but when he carried them together weighed 40kg in total. The high improbability of that being the case makes his evidence in this regard improbable.
(g)There is no corroborating evidence from a time contemporaneous to when the lifting is said to have occurred, to support the applicant’s evidence. The applicant alleges that he attended the gym with his partner yet, no statements were provided from his partner corroborating his version.
Mr Reeday, in turn, in written closing submissions dated 30 May 2017, responded as follows:
CONTENTIONS
26.The Applicant contends that Thoracic Spondylosis is related to service and that Factor H of the Statement of Principle No. 65 of 2014 is met.
27.The Applicant contends that Lumbar Spondylosis is related to service and that Factor I of the Statement of Principle No. 63 of 2014 is met.
Claimant report – lifting
28.The Applicant has detailed the lifting regime in the two claimant reports and described the types of lifting he performed during this period in oral evidence.
…
31.Thus the totality of the Applicant’s Lifting as outlined in the “Claimant Report – Carrying or Lifting Loads” dated 14 February 2015 and “Claimant Report – Lifting Loads whilst in the Army Reserves” dated 18 August 2016 must be taken into consideration as per Repatriation Commission v Kattenberg (2002) FCA 412 when deciding Factor I of the Lumbar Spondylosis SOP and Factor H of the Thoracic Spondylosis SOP.
32.The Applicant stated in two lifting questionnaires (dated 14 February 2015 and 18 August 2016) that his lifting increased in June 2010 his repetitions of the lifting (Military Rows/Dead Lifts/Clean and Jerk) from 10 to 12 as he wanted to improve his health and fitness to lower his elevated cholesterol as noted by a Medical Officer at Defence Force Recruiting.
33.This is supported by Dr G Westoff (General Practitioner) in a report dated 23 July 2010, which in part states
“Mr Reeday’s readings have improved markedly with his recent diet and exercise changes that he intends to continue with”.
Dr Westoff is referring to the increase in running and gym activities.
34.It’s important to note as stated by the Applicant in the ‘Claimant Report – Running on the Foot Plantar Fasciitis’, dated 29 March 2012 that there was an increase in running in June 2010 from 25 kms per week to 30 kms per week.
This report, “Supplementary Submission to the Administrative Appeals Tribunal” was furnished to the Tribunal on the 17 November 2016.
35.As a result of enlistment to the ADF, the Applicant increased his attendance of the gym from 4 to 5 times per week in order to maintain and increase his fitness to pass ADF physical tests.
36.As a result of enlistment to the ADF, the Applicant increased his repetitions of lifting (Military Rows/Dead Lifts/Clean and Jerk) from 12 to 20 to maintain and increase his fitness to pass ADF physical tests.
37.The Applicant has valid reasons for completing his 2 lifting questionnaires (14 February 2015 and 18 August 2016), which is several years after completing his lifting and subsequent traumas in January 2011.
38.      Chronological order key evidence and reference:
•19 August 2013 – Report from Dr A Cairns, Orthopaedic Surgeon. Reference T Documents Pages 156-166
•11 March 2014 – Report from Dr E Nicoll, Departmental Medical Advisor.
Reference T Documents Pages 174-191
•2 July 2014 – SOP Thoracic Spondylosis causal factor of trauma is changed from 25 years to 1 year for clinical onset purposes. Reference T Documents Pages 198-203
•2 July 2014 – SOP Lumbar Spondylosis causal factor of trauma is changed from 25 years to 1 year for clinical onset purposes. Reference T Documents Pages 192-197
39.The Applicant lodged his primary claim with the Respondent and it took until the 11 March 2014, some 3 years for the Respondent via Dr E Nicoll, Departmental Medical Advisor to finally confirm based on a radiological finding dated 7 May 2011 CT cervical, thoracic and lumbar spine the diagnosis of Thoracic and Lumbar Spondylosis.
40.This delay and defective administration produced an incorrect primary decision dated 22 July 2011 in that not all the relevant SOPs were determined to address the Applicant’s initial claim.
41.The Applicant notes the Thoracic/Lumbar SOP changes with effect from 2 July 2014 regarding the trauma causal factor.
42.Whilst completing his “Navigate in Difficult or Trackless Areas” (Assessed via Australian Army Manual Land Warfare 2-3-1) training the Applicant’s personal kit weighed 20 kgs, plus he lifted full 20 litre (20kgs) jerry cans, radio communications and general supplies (20 kgs) when lifted together weighed 40 kgs.
43.The Applicant whilst completing his recruit training at 13 BDE BRC Karrakatta was required, as part of the duties of an infantry soldier at those Barracks, load or unload general stores/supplies in order to complete training tasks and general administration tasks. Often this involved lifting items of various weights in excess of 40kgs, configurations and over varying distances and heights.
44.The requirement to lift items whilst a recruit is formally supported and clearly articulated in a document “Workplace Disability Report” completed by Captain Pearce dated 31 May 2012 (2IC of the Applicant’s Unit 13 BDE BRC). This document was submitted to the Tribunal and Respondent via the Applicant’s “Supplementary Submission to the Administrative Appeals Tribunal” dated 6 September 2016.
Reasons for Delay in Submission of Claimant Reports
45.      The Applicant also notes and accepts Section 341 of the MRCA in that;
Current Statement of Principles to be applied on review of a decision. This section applies if:
•the Commission, the Board or the Tribunal is reconsidering or reviewing a determination in relation to a claim to which section 338 or 339 applies: and
•Subject to section 340, the Commission, the Board or the Tribunal is to apply the current Statement of Principles when making its decision on the reconsideration or review.
•To avoid doubt, it is declared that no right, privilege, obligation or liability is acquired, accrued or incurred that would permit the Commission, the Board or the Tribunal, in making a decision on the reconsideration or review, to apply any Statement of Principles that is no longer in force.
46.Compounding the above is that the Veterans’ Review Board (VRB) in their reviewable decision only addressed the causal factor of trauma in the relevant SOPs and unfortunately no other factors were raised, discussed or deliberated. The VRB also failed to formally determine the Applicant’s right shoulder claim and only focused on the undiagnosed nature of the Applicants spinal conditions.
47.Thus when the Applicant carefully analysed the VRB Decision and Reasons dated 9 December 2014, against the relevant SOPs at that time. The Applicant identified a causal factor of lifting concerning both Lumbar and Thoracic Spondylosis that links those conditions to service and the need to complete a Lifting Questionnaire dated 14 February 2015 to support such a conclusion and to have cause to review that decision.
Applicant Oral Evidence
48.The Applicant under cross examination stated that there was a life changing event in August 2008 in that he separated from his then wife and daughter.
49.This was the trigger for the Applicant in late 2008 to decide to obtain his drivers’ licence and to join a gym. Both of these activities were conducted for the first time in his life.
50.The Applicant commenced with his current employer, Australian Federal Government, Commonwealth Department of Veterans’ Affairs on the 8 May 1989, at the age of 17 years and 8 months.
51.Contrary to the Respondent who stated during cross examination that the Applicant worked for the Department of Defence and commenced employment in 1984.
52.The Applicant’s employment in January 1989 to March 1989 (5 weeks) was at a roller door company where he was a junior factory hand assistant.
53.This role was to primarily clean the factory floor – equipment and obtain colleagues food for morning – afternoon tea and lunch.
54.The Applicant’s employment in March 1989 to May 1989 (5 weeks) was at the West Australian Government State Housing Commission where he worked in the records section.
55.This role was to primarily create files, put files away and to deliver files to colleagues.
56.There was no requirement or expectation under the Applicant’s current Employer’s Work, Health and Safety Act to lift items greater than 25 kgs nor indeed with his former employment.
57.As stated by the Applicant in the Claimant Report – Lifting Loads whilst in the Army Reserve dated 18 August 2016 and under cross examination he lifted items weighing 40 kgs via truck tyres, jerry cans (full), box lift and place, and logs.
Applicant’s Sport History
59.The Respondent contends doubt about the stated weight of the Applicant’s gym work.
60.The Applicant is 6 feet 2 inches tall and then weighed approximately 95 kgs.
61.The amount lifted by the Applicant in the completed lifting questionnaires is indeed correct and factual notwithstanding the Respondent’s unsubstantiated assumptions and aspersions that the Applicant is not truthful.
62.The Applicant provided a visual demonstration and explained how to complete each exercise (military row/dead lift and clean and jerk).
63.      The Applicant also clearly described the following;
•The correct techniques to complete such exercises
•The different bars and equipment
•The individual weight of each weight disc and bar to support the actual amount lifted
64.The Applicant was naturally strong and with the support and counsel of his former partner who was very experienced in gym work and also received tuition from a professional personal trainer.
Applicants Leave History
69.The Respondent has raised the issue of the Applicant’s leave in 2009 and 2010 and the Applicant being unable to recall precise dates during that period whilst being under cross examination.
70.The Applicant under cross examination stated that he has never used a day of long service and currently has a balance of some 8.5 months.
71.Additionally the Applicant added that he has excessive annual leave (currently 12 weeks) and obviously didn’t take much holidays.
72.For the record the Applicant’s annual leave for the period 1 January 2009 to 31 December 2010 inclusive was as follows:
•          2 January 2009 to 7 January 2009 (4 working days)
•          18 August 2009 to 19 August 2009 (2 working days)
•          3 May 2010 to 7 May 2010 (5 working days)
•          20 May 2010 to 20 May 2010 (1 working day)
•          12 July 2010 to 12 July 2010 (1 working day)
•          16 July 2010 to 18 July 2010 (1 working day)
•          2 September 2010 to 2 September 2010 (1 working day)
•          6 September 2010 to 6 September 2010 (1 working day)
•          4 October 2010 to 4 October 2010 (1           working day)
•          11       October 2010 to         11 October 2010        (1 working day)
•          18       October 2010 to         18 October 2010        (1 working day)
•          25       October 2010 to         25 October 2010        (1 working day)
73.As this leave history is intermittent in nature, it is not unreasonable that the Applicant was unable to recall exact details of his leave entitlements under cross examination.
Defence Recruitment – evidence of increase in fitness
74.The Applicants enlistment as per Defence Joining Instruction was provisional until such time that he demonstrated the following:
•Within six (6) months from the date of my provisional enlistment the applicant was required to pass a Pre-Enlistment Fitness Assessment (PFA) at the level specified in current Defence Instructions
•Within six (6) months from the date of my provisional enlistment the applicant was required to commence my training at the Army Recruit Training Centre (ARTC)
•If the applicant did not comply with the above conditions, his enlistment may have been terminated within 6 months of the provisional enlistment.
75.In order to meet the Defence instruction, the Applicant commenced an intense training regime, which consisted of running and weight training. It was during this period that the Applicant increased fitness training in the gym lifting weights.
76.To assist and support the Applicant’s contentions he furnished to the Tribunal Exhibit A1 Recruiting Psychology Report (Defence Force Psychology Organisation) dated 20 May 2010 and Exhibit A2 Application for Entry into the Australian Defence Force dated 28 April 2010.
77.The information contained in Exhibit A1, confirms that the Applicant oral evidence of key facts as detailed below:
•“John recently separated from his wife (2008)”
•“John only obtained his drivers’ licence one year ago for the first time”
•“He played sport (AFL 20 + years) and keeps fit”
•“John has also kept a regular fitness routine with AFL (20 years) and more recently training by running 3 kms each morning and going to the gym”
•“He has kept a regular fitness routine for many years and has recently increased this to cope with Kapooka”
78.This crucial evidence demonstrates after the life changing events of August 2008 in the separation from his then wife and daughter, the Applicant’s focus and commitment to obtain his drivers’ licence and getting fitter and healthier by joining a gym both for the first time in his life.
79.As articulated by the Applicant in cross examination he commenced playing football in 1983 at the age of 12 and played for the Innaloo Football Club in seasons 1996-1999 and the second half of season 2003.
Defence Requirement
80.There is no difference in physical testing requirements and or expectations between a regular full time member of the ADF or a reservist.
81.On the 9 August 2010 the Applicant enlisted in the Australian Defence Force (ADF) as a Rifleman (Infantry) which is one of the most physically demanding roles within the ADF.
82.The Australian Army has a Physical Training Continuum – Every Soldier Physically Tough
“Soldiers face great physical demands in all theatres of operations – even without additional demands of close combat. Preparation for these demands requires a systematic approach to conditioning that continues to develop both physical strength and endurance. This cannot be achieved through organised physical training alone. Physical toughness requires that individuals commit themselves to continuous physical conditioning”.
83.It is important to note that Physical Training in off duty hours was authorised by a Chief of Army Directive 15/08 (On individual training conducted in off duty hours) and that individual soldiers are required “to maintain a lifestyle that supports the maintenance of individual readiness and are responsible level of vocational fitness sufficient to satisfy the requirement of their employment”
84.There is no difference in physical testing requirements and or expectations between a regular full time member of the ADF or a reservist.
…
MRCC has Previous Accepted Personal Fitness Regime of Applicant
92.“Claimant Report – Running on the Foot Plantar Fasciitis” dated 29 March 2012 that was furnished by the Applicant to both the Tribunal and Respondent via a letter dated 2 June 2015.
93.The Respondent has formally acknowledged and accepted the Applicant’s Bilateral Plantar Fasciitis under the MRCA via running and a personal fitness regime as being service related (applying the legal precedent case of Repatriation Commission v Kattenberg (2002) FCA 412) in a Decision dated 5 November 2014 some 4 years after the Applicant had reported ceasing running.
94.What’s compelling and profound is that the Applicant only obtained Exhibit A1 in 2016 via Freedom of Information and that it is not possible for him to have manufactured a story to benefit his claim. His increase in personal exercise was identified and recorded before his enlistment.
95.Thus when the Applicant completed his running history he didn’t have access to this record, however, it was completed from memory and proven by an independent and credible source from the Department of Defence via Exhibit A1 to be indeed correct.
Close
99.On the 9 August 2010 the Applicant enlisted in the ADF as a Rifleman (Infantry), which is one of the most physically, demanding roles within the ADF.
100.The Applicant contends whilst performing his ADF lifting tasks in uniform and conducting a personal fitness regime which involved lifting whilst being a member of the ADF (with a clear objective to maintain and increase his fitness to pass ADF physical tests). Satisfies that he was rendering defence service during that period and combined with his pre enlistment fitness regime which also involved lifting that factor I of Lumbar Spondylosis (63/2014) and factor H of Thoracic Spondylosis (65/2014) are satisfied via a material contribution that was contributed to in a material degree by his rendered defence service lifting.
101.Dr Cairns confirmed in his oral evidence that, by the report of Dr Khan that the Applicants spondylosis conditions were mild disc degeneration, therefor the standard of proof is reasonably satisfied as the Applicant would have shown a more increased level of disc degeneration had his spondylosis condition be solely a age related disease.
102.The Applicants symptoms are pain and restricted range of movement and these symptoms can be attributed to the newly accepted conditions of the Sprain/Strain of Back, Thoracic Region; Sprain/Strain of Back, Lumbar Region. Accordingly, Dr Cairns in his oral evidence, opinions that the symptoms of spondylosis are the same as for sprain and strains.
103.The applicant’s trauma in January 2011 is not the sole cause of his symptomology. This has been confirmed by the Respondents exert witness, Dr Cairns. Therefor the Applicants claimed conditions arose out or was attributed to the increase in lifting during his Defence Service.
104.The relevant SOPs clearly states ....the lifting of 168 000 kgs within any 10 year period before the clinical onset of Thoracic/Lumbar Spondylosis.
105.The Applicant’s lifting of 35 kgs and above from the 7 May 2001 to 7 May 2011 is taken into account irrespective if the Applicant was rendering defence service or not as described by the RMA.
106.The Applicant contends that all lifting as stated in the 2 lifting questionnaires are taken into account when applying the relevant SOPs and the relevant Case Law to support the Applicants contention is Repatriation Commission v Kattenberg (2002) FCA 412 as the material contribution of Defence Service has been met.
107.The Applicant contends that Section 27 (b) does indeed apply as his symptoms are not solely attributed to the trauma in January 2011, but also arose out of his increase in lifting and that the relevant Case Law to support the above Applicant’s contention is Repatriation Commission v Law (1980) 47 FLR 57 and Repatriation Commission v Roncevich (2005) HCA 40.

The Tribunal has carefully reviewed all of the evidence before it. It is evident that Mr Reeday has suffered a great deal physically and will continue to do so. Unfortunately, on the evidence, the Tribunal is not satisfied that Mr Reeday meets the SOP factors in SOP 65 and SOP 63. Put simply, the available material does not raise a connection between his two remaining conditions and Mr Reeday’s defence service.
At their core, both SOPs require evidence that Mr Reeday engaged in lifting loads of at least 35 kilograms while bearing weight through the lumbar/thoracic spine to a cumulative total of at least 168,000 kilograms within any ten year period before the clinical onset of lumbar/thoracic spondylosis, and where the clinical onset of lumbar/thoracic spondylosis occurs within the 25 years following that period.
There is simply insufficient evidence for the Tribunal to find that this actually occurred. The Tribunal does not doubt that Mr Reeday increased his personal training regime and engaged in increased running, gym work, heavy lifting of jerry cans and various stores/supplies. Mr Reeday is clearly committed to maintaining his physical fitness and has undoubtedly found the past few years of ill health quite distressing. Nor does the Tribunal doubt that the defence force requires its members to be in top physical condition. Unfortunately, there is no reliable, or indeed credible, evidence before the Tribunal in relation to the actual weights lifted by Mr Reeday so as to satisfy the requirements of the SOPs now in question.
Mr Reeday claims that the claimant sheets he completed in 2015 and 2016 support his contention that he did indeed lift the weights required by SOPs 65 and 63. The Tribunal disagrees. The Tribunal has serious doubts as to Mr Reeday’s credibility in this regard. Mr Reeday was meticulously cross examined by Ms Slack in relation to these claim sheets and his oral evidence generally. Mr Reeday’s responses were less than convincing. It is, to be frank, inconceivable that Mr Reeday would have an almost perfect memory as to dates and exact weights in relation to complex gym equipment and military stock etc. almost six years after the alleged lifting events occurred but have no memory of holidays or other relevant life events. Further, as rightly argued by Ms Slack, in relation to Exhibit A7, in cross-examination, Mr Reeday explained that each and every item referred to therein, weighed exactly 40kg. That is, even collections of various “stores/supplies” that all individually weighed less together weighed 40kg in total when he carried them. The high improbability of that being the case makes Mr Reeday’s evidence in this regard highly improbable and quite problematic.
Of course, this evidence could have been quite easily corroborated. Mr Reeday claims that his meticulous, almost daily training regime was undertaken with his partner and that he also had a personal trainer. Neither was called to give evidence. Nor was anyone from the military called to detail what weights, precisely, officers are required to lift throughout the course of regular service. Further, the “notebook” that Mr Reeday claims diarised each and every weight lift undertaken was no longer available. Without this evidence, the Tribunal can only rely on Mr Reeday’s memory and version of events. As stated, the Tribunal does not find his evidence to be credible.
The Tribunal also finds it troubling that despite years of medical intervention there is absolutely no mention, in any of Mr Reeday’s medical notes, of what Mr Reeday claims is a quite extensive and physically demanding weight bearing exercise regime and the possible effect of this regime on Mr Reeday’s spondylosis conditions. Dr Westhoff and others mention increased physical activity and Mr Reeday does make reference to it in various other documents. Mr Reeday and his medical specialists do not, however, mention the sort of quite strenuous and detailed physical activity claimed by Mr Reeday. Given the nature of his medical conditions, the pain he says he was experiencing and the forensic reputations of the many doctors who examined Mr Reeday, it seems improbable that this would not be the subject of some comment and indeed medical concern. There is no evidence that Mr Reeday “held back” when discussing his health issues. It seems improbable that he would not have mentioned his weight lifting patterns in this context. This again casts considerable doubt on the reliability and truthfulness of the evidence given by Mr Reeday.
On the evidence before it, the Tribunal is simply not satisfied that Mr Reeday meets the SOP factors in SOP 65 and SOP 63 that he relies on. The available material does not raise any connection whatsoever between his spondylosis conditions and his defence service. On the contrary, the evidence points to Mr Reeday’s thoracic and lumbar spondylosis conditions as being constitutional in nature. That is supported by the very detailed medical reports filed by Dr Cairns. Dr Cairns gave evidence before the Tribunal. He did not depart from his previously stated opinion on the question of what caused Mr Reeday’s spondylosis conditions. None of Mr Reeday’s doctors or the specialists he relies on were called as witnesses. This is unfortunate. Both in writing and orally, Dr Cairns carefully and thoroughly detailed and described the plethora of medical evidence before him and, in relation to the specific spondylosis conditions, detailed why, exactly, Mr Reeday’s spondylosis conditions were not military related. The same cannot be said of the medical reports filed by other doctors and medical specialists. Dr Edelman’s reports focus on Dr Cairns’ medical pedigree and are unusually dismissive. This is not particularly helpful. It points to a lack of objectivity on the part of Dr Edelman and leaves the Tribunal where it lends less weight to his evidence. The Tribunal has no reason to doubt Dr Cairns quite impressive medical pedigree or his clear ability to provide expert evidence in relation to spondylosis. What would have assisted was a thorough overview of the medical material by Dr Edelman, examined in the context of what Dr Cairns concluded and then some sort of rebuttal based on the actual evidence before the Tribunal. This was not provided. Further, while some of what Dr Edelman states is arguably useful in relation to Mr Reeday’s other medical conditions, in relation to the spondylosis conditions, his evidence is not detailed, substantive or helpful.
Similar concerns arise in relation to the written evidence provided by Dr Hanrahan and Dr Duck. Dr Hanrahan does not provide a detailed, forensic overview of the medical material as it relates to the spondylosis conditions. He focuses instead to a large degree on Mr Reeday’s other conditions (not before this Tribunal). Dr Duck’s evidence really only summarises the work of others, with little analysis based on his own medical expertise. Dr Duck’s evidence also lacks objectivity. His writing, in places, reads more as advocacy on behalf of Mr Reeday and criticism of the Commission than an objective assessment based on any given expertise of his own.
In the circumstances, the Tribunal thus prefers the medical evidence of Dr Cairns.
Having reviewed all of the evidence before it, the Tribunal is not satisfied that one of the factors contained in the applicable SOPs exists. Section 339(3) of the MRC Act is accordingly, not satisfied. As per s 27 of the MRC Act, there is an insufficient connection between the injury claimed and Mr Reeday’s defence service. The Tribunal cannot find on the evidence that Mr Reeday’s spondylosis conditions were contributed to or aggravated by any defence service. There is simply insufficient evidence to draw any connection whatsoever between his spondylosis condition and anything done as part of his military service.
DECISION
For the reasons outlined above, pursuant to section 43(1) of the Adminstrative Appeals Tribunal Act 1975, the decision under review, that being the reviewable decision dated 9 December 2014, is affirmed.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

...............[sgd]........................................................
Administrative Assistant – Legal
Dated: 18 August 2017

Date of hearing: 11 April 2017

Final Written Submissions received 7 June 2017

Advocate for the Applicant: Mr P Larter

Counsel for the Respondent: Ms K Blackford-Slack

Solicitors for the Respondent: Sparke Helmore

Condition	Diagnosis
Lumbar spine	Lumbar paravertebral muscle and connective tissue pain, cervical facet joint strain with co-contraction causing headaches
Headaches	Muscle contraction headaches, 2nd degree neck strain
Cervical spine	Facet joint strain, muscle spasms
Thoracic spine	R sided paravertebral muscle strain
Right shoulder	Capsular strain/tendonitis, R shoulder peri scapular muscles

*Description of weight bearing exercise before the sudden increase*	*Dated of sudden increase*	*Description of weight bearing exercise at the sudden increase*	*Reason for sudden increase in weight bearing exercise*
RUNNING AND JOGGING FOR FITNESS	EARLY DECEMBER 2010	SPRINT WORK	PREPERATION [sic] FOR FITNESS TEST (BEEP TEST) KAPOOKA

Period	Describe the load being lifted	Weight of the load	Frequency the load was lifted e.g twice a day	Length of time the load was lifted/carried on each occasion e.g. 2 ½ hours	Activities being carried out when load was lifted/carried
/01/09 to /05/10 4 times p/w	Gym Work	40kgs	10 times	400 kgs p/d 1600 kgs p/w 116800 kgs total	Gym work
/01/09 to /05/10 4 times p/w	Gym Work	60kgs	10 times	600 kgs p/d 2400 kgs p/w 175200 kgs total	Gym work
/01/09 to /05/10 4 times p/w	Gym Work	80kgs	10 times	800 kgs p/d 3200 kgs p/w 233600 kgs total	Gym work
/06/10 to /08/10 4 times p/w	Gym Work	40kgs	12 times	480 kgs p/d 1920 kgs p/w 15360 kgs total	Gym work
/06/10 to /08/10 4 times p/w	Gym Work	60kgs	12 times	720 kgs p/d 2880 kgs p/w 23040 kgs total	Gym work
/06/10 to /08/10 4 times p/w	Gym Work	80kgs	12 times	960 kgs p/d 3840 kgs p/w 30720 kgs total	Gym work

Date of hearing:	11 April 2017
Final Written Submissions received	7 June 2017
Advocate for the Applicant:	Mr P Larter
Counsel for the Respondent:	Ms K Blackford-Slack
Solicitors for the Respondent:	Sparke Helmore