Roberts and Military Rehabilitation and Compensation Commission

[2011] AATA 835

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 835

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4536

GENERAL ADMINISTRATIVE DIVISION		)
Re		SIGA ROBERTS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member and
Dr G J Maynard, Brigadier (Rtd), Member  

Date25 November 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...............[Sgd]...............................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Claim for acceptance of liability by the Military Rehabilitation and Compensation Commission of osteoarthrosis left hip and major depressive disorder – Application of Statement of Principles – Claimed conditions not caused by service – No aggravation of the conditions by service – Decision under review affirmed

Military Rehabilitation and Compensation Act 2004 (Cth) ss 5, 6, 23, 27, , 30, 31-36, 319, 335, 339, 355
Veterans’ Entitlements Act 1986 (Cth) ss 196B
Administrative Appeals Tribunal Act 1975 (Cth) s 27

McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

25 November 2011 Mr R G Kenny, Senior Member and
Dr G J Maynard, Brigadier (Rtd), Member         

BACKGROUND

1. Siga Roberts served in the Australian Regular Army from 8 January 2007 until 23 September 2008. On 18 August 2009 his claims, made in accordance with s 319 of the Military Rehabilitation and Compensation Act 2004 (Cth) (“the MRC Act”), for conditions now diagnosed as aggravation of left hip osteoarthrosis and major depressive disorder, were rejected by the Military Rehabilitation and Compensation Commission (“the MRCC”). That determination was reviewed, and affirmed, by a delegate of the MRCC on 17 September. The orthopaedic condition before us is aggravation of osteoarthrosis of the left hip, for which Mr Roberts lodged a claim on 5 August 2008. That followed a determination by the MRCC, on 9 July 2008, in which liability for Mr Roberts’ bilateral congenital hip condition of acetabular dysplasia was denied. Further review of that decision has not been sought by Mr Roberts. His claim for depressive disorder was lodged on 15 May 2008.

ISSUES AND LEGISLATION

2. The matter comes before the Tribunal in accordance with s 27 of the Administrative Appeals Tribunal Act 1975 (Cth) and ss 354 and 355 of the MRC Act. It is not disputed that Mr Roberts rendered defence service in the form of peacetime service under the MRC Act.[1] The MRCC must accept liability for an injury sustained by Mr Roberts if the injury is a service injury.[2] This is defined to include an injury which resulted from an “occurrence that happened while the person was a member rendering defence service” or which “arose out of, or was attributable to”, any defence service rendered by him.[3] It also includes an aggravation of an injury by defence service rendered by a member after he sustained the initial injury.[4] Liability will not be accepted if any of the exclusions set out in the MRC Act is applicable.[5] In this matter, it is common ground that none of these exclusory provisions apply. 

[1] See s 6(1) of the MRC Act.

[2] See s 23(1) of the MRC Act.

[3] See ss, 27(a) and 27(b) of the MRC Act.

[4] See ss 5(1), 27(d) and 30 of the MRC Act.

[5] See ss 31 – 36 of the MRC Act.

3.      The decision concerning liability is to be made to the Tribunal’s reasonable satisfaction.[6] In so deciding, we are to accept liability only if a relevant Statement of Principles (“SoP”) published by the Repatriation Medical Authority[7] upholds Mr Roberts’ contention that the claimed condition is, on the balance of probabilities, connected with that service.[8] The relevant SoP for major depressive disorder is Instrument No 28 of 2008[9]. For hip osteoarthrosis, it is Instrument No 32 of 2005, as repealed and replaced by Instrument No 14 of 2010.[10] Mr Clark also referred us to Instrument No 33 of 2010 which relates to joint instability.

[6] See s 335(3) of the MRC Act.

[7] In accordance with s 196B of the Veterans' Entitlements Act 1986 (Cth).

[8] See s 339(3) of the MRC Act and Repatriation Commission v Smith (1987) 15 FCR 327 at 335.

[9] As amended by Instrument No 41 of 2010 which is not relevant in this matter.

[10] As amended by Instrument No 36 of 2011 which is not relevant in this matter.  The more favourable of the two relevant Instruments is to be applied.

SUBMISSIONS

4.      Mr Roberts appeared for himself with the assistance of his wife. For the aggravation of Mr Roberts’ hip osteoarthrosis, we were referred to factors 6(h), (m), (n), (bb), (gg) and (hh) of Instrument No 14 of 2010 and 6(h), (i), (j), (v), (w), (x) of Instrument 32 of 2005. For major depressive disorder, we were referred to factors 6(a)(ii), (v), (viii) and (xii) in Instrument No 28 of 2008, as amended. Those factors and their associated definitions read:

Osteoarthritis: Instrument No 14 of 2010

6        …

(h)having disordered joint mechanics of the affected joint for at least five years before the clinical onset of osteoarthrosis in that joint; or

…

(m)     for osteoarthrosis of a joint of the lower limb only,

(i) lifting loads of at least 35 kilograms while bearing weight through the affected joint to a cumulative total of at least 168 000 kilograms within any 10 year period before the clinical onset of osteoarthrosis in that joint, and where the clinical onset of osteoarthrosis in that joint occurs within the 25 years following that period; or

(ii) carrying loads of at least 35 kilograms while bearing weight through the affected joint to a cumulative total of at least 3800 hours within any ten year period before the clinical onset of osteoarthrosis in that joint, and where the clinical onset of osteoarthrosis in that joint occurs within the 25 years following that period; or

…  

(n)       for osteoarthrosis of a joint of the lower limb or hand joint only,

(i) being overweight for at least 10 years before the clinical onset of osteoarthrosis in that joint; or

(ii) for males, having a waist to hip circumference ratio exceeding 1.0 for at least 10 years, before the clinical onset of osteoarthrosis in that joint; or

…

(bb)having disordered joint mechanics of the affected joint for at least five years before the clinical worsening of osteoarthrosis in that joint; or

…

(gg)     for osteoarthrosis of a joint of the lower limb only,

(i) lifting loads of at least 35 kilograms while bearing weight through the affected joint to a cumulative total of at least 168 000 kilograms within any 10 year period before the clinical worsening of osteoarthrosis in that joint, and where the clinical worsening of osteoarthrosis in that joint occurs within the 25 years following that period; or

(ii) carrying loads of at least 35 kilograms while bearing weight through the affected joint to a cumulative total of at least 3800 hours within any ten year period before the clinical worsening of osteoarthrosis in that joint, and where the clinical worsening of osteoarthrosis in that joint occurs within the 25 years following that period; or

…        

(hh)     for osteoarthrosis of a joint of the lower limb or hand joint only,

(i) being overweight for at least 10 years before the clinical worsening of osteoarthrosis in that joint; or

(ii) for males, having a waist to hip circumference ratio exceeding 1.0 for at least 10 years, before the clinical worsening of osteoarthrosis in that joint; or

…  

9.        …

"being overweight" means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 25 or greater.

The BMI = W/H² and where:

W is the person's weight in kilograms and

H is the person's height in metres;

"disordered joint mechanics" means maldistribution of loading forces on that joint resulting from:

(a) a rotation or angulation deformity of the bones of the affected limb; or

(b) a rotation or angulation deformity of the joint of the affected limb;

Osteoarthritis: Instrument No 32 of 2005

6.        …

(h)for osteoarthrosis of a hip, knee or ankle joint only, having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis in that joint; or

(i)for osteoarthrosis of a hip, knee or ankle joint only, lifting loads of at least thirty-five kilograms while bearing weight through the affected joint to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of osteoarthrosis in that joint, and where the clinical onset of osteoarthrosis in that joint occurs within the twenty-five years following that period; or

(j)for osteoarthrosis of a hip, knee or ankle joint only, being obese for at least ten years within the twenty-five years before the clinical onset of osteoarthrosis in that joint; or

…

(v)for osteoarthrosis of a hip, knee or ankle joint only, having disordered joint mechanics affecting that joint before the clinical worsening of osteoarthrosis in that joint; or

(w)for osteoarthrosis of a hip, knee or ankle joint only, lifting loads of at least thirty-five kilograms while bearing weight through the affected joint to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical worsening of osteoarthrosis in that joint, and where the clinical worsening of osteoarthrosis in that joint occurs within the twenty-five years following that period; or

(x)for osteoarthrosis of a hip, knee or ankle joint only, being obese for at least ten years within the twenty-five years before the clinical worsening of osteoarthrosis in that joint; or

…

9.        …

“being obese” means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater.

The BMI = W/H² and where:

W is the person’s weight in kilograms and

H is the person’s height in metres;

“disordered joint mechanics” means maldistribution of loading forces on that joint resulting from:

(a) a rotation or angulation deformity of the long bones of the affected limb;

(b) a rotation or angulation deformity of the hip, knee or ankle joint of the affected limb;

(c) necrosis of bone near the affected joint;

(d) amputation involving either leg; or

(e) a permanent limp involving either leg resulting from pelvic, thoracolumbar spine, long bone or joint pathology;

Joint instability: Instrument 33 of 2010

6.        …

(b)having laxity of the joint capsule or a stabilising ligament of the affected joint, at the time of the clinical onset of joint instability; or

…

(d)having a biomechanical abnormality involving the affected joint, at the time of the clinical onset of joint instability; or

…

(g)having laxity of the joint capsule or a stabilising ligament of the affected joint, at the time of the clinical worsening of joint instability; or

…

(i)having a biomechanical abnormality involving the affected joint, at the time of the clinical worsening of joint instability; or

…

9.…

"a biomechanical abnormality involving the affected joint" means an abnormality of the forces acting on the affected joint as a result of a muscle, tendon, ligament, or bone, that maintains the normal structural or functional relationship between the articulating surfaces of the affected joint, and that is not functioning correctly, is abnormal or is misaligned. This definition includes biomechanical abnormality as a result of surgery involving the stabilising structures of the affected joint and extra-articular malunion of a fracture of a bone involved in the affected joint;

depressive disorder: Instrument No 28 of 2008 (as amended)

6.        …

(a)       …

(ii) experiencing a category 1B stressor within the two years before the clinical      onset of depressive disorder; or

…

(v) experiencing a category 2 stressor within the six months before the clinical      onset of depressive disorder; or

…

(viii) having chronic pain of at least six months duration at the time of the              clinical onset of depressive disorder; or

…

(xii) being the victim of severe childhood abuse within the 30 years before the       clinical onset of depressive disorder; or

…

9.        …

"a category 1B stressor" means one of the following severe traumatic events:

…

(b) viewing corpses or critically injured casualties as an eyewitness;

…

"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;

…  

(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful workloads, or experiencing bullying in the workplace or school environment;

…

"severe childhood abuse" means:

(a) serious physical, emotional, psychological or sexual harm whilst a child aged under 16 years; or

(b) neglect involving a serious failure to provide the necessities for health, physical and emotional development, or wellbeing whilst a child aged under 16 years;

where such serious harm or neglect has been perpetrated by a parent, a care provider, an adult who works with or around that child, or any other adult in contact with that child;.

"chronic pain" means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living;

"relevant service" means:

(a) eligible war service (other than operational service) under the VEA; or

(b) defence service (other than hazardous service) under the VEA; or

(c) peacetime service under the MRCA;

5.      To meet the requirements of a SoP, the relevant factor must be related to Mr Roberts’ service.[11]

[11] See clause 5 of each Statement of Principles.

6.      In relation to osteoarthrosis under Instrument No 14 of 2010, for factors 6(h) and (bb), Mr Roberts referred to a genetic defect in his hip joints which amounted to having disordered joint mechanics of the hip joint and, also, the altered gait which was resultant upon his right hip surgery. For factors 6(m) and (gg), Mr Roberts implicated his duties during his service. For factors 6(n) and (hh), he submitted that he became overweight because of limitations imposed upon him by his right hip osteoarthrosis, for which liability has been accepted by the MRCC. 

7.      In relation to osteoarthrosis under Instrument No 32 of 2005, for factors 6(h) and (v), Mr Roberts referred to a genetic defect in his hip joints which amounted to having disordered joint mechanics of the hip joint. For factors 6(i) and (w), he implicated his duties during his service. For factors 6(j) and (x), he submitted that he became obese because of limitations imposed upon him by his right hip osteoarthrosis, for which, liability, has been accepted by the MRCC. 

8.      In relation to his depressive disorder under Instrument No 28 of 2008, Mr Roberts contended that, in accordance with factor 6(a)(ii), he experienced a category 1B stressor within the two years before the clinical onset of his depressive disorder because, within the meaning of a category 1B stressor,  he saw the corpse of his father, who died in May 2008. For factor 6(a)(v), Mr Roberts described being bullied in the workplace. For factor 6(a)(viii), Mr Roberts contended that his chronic pain of at least six months duration from his right hip was a cause of his depressive disorder. In relation to factor 6(a)(xii), Mr Roberts relied on his childhood experience of being the victim of severe childhood abuse which was re-lived by him because of bullying during his service years.

9.      The issues for determination comprise each of the matters identified by Mr Roberts as being relevant to his service. After considering each of those matters, we have determined that none of the factors are met in Mr Roberts’ case and, accordingly, we are reasonably satisfied that his left hip osteoarthrosis and depressive disorder are not related to his Army service.  

EVIDENCE

Mr Roberts

10.     Mr Roberts gave the following evidence in relation to his hip condition. He enlisted in the Army on 8 January 2007 and was medically discharged on 23 September 2008. His aspiration in enlisting in the Army was to become a marine specialist. He underwent initial training at Kapooka. From the start, he experienced pain in his feet. In February 2007, he began to feel pain in his hips, especially when slow marching or marking time. His right hip was worse than the left. His pain continued and he reported the matter to the Regimental Aid Post (“RAP”) on 1 March 2007. He saw Dr Steel who referred him for an MRI. This revealed acetabular dysplasia. He agreed that this was a congenital condition. Mr Roberts was referred to Dr Hayes in Brisbane who eventually carried out surgery on his right hip. He completed a driver’s course at Puckapunyal with medical restrictions and was advised by his superior that he should not have been allocated to the course.  Frequently, Mr Roberts was excused form physical activity by a series of medical certificates. In July 2007, he was transferred to Townsville where he was scheduled to commence training for his marine specialty. However, his physical limitations prevented him from undergoing that training. Mr Roberts agreed that his BMI reading before enlistment was greater than 30 and his lack of exercise contributed to his difficulty in controlling his weight. He described his duties during training as involving the lifting of other soldiers and such things as back-packs, ammunition boxes and weapons. He provided a table which listed his lifting activities during his service.

11.     In his statement, dated 10 June 2008, Mr Roberts set  out the following as a basis of his claim for his psychiatric condition. He had no problems before he joined the Army and was confident and positive about his future. He was of sound health psychologically when he joined the Army but, because of his physical problems during recruit training, he was frequently victimised, harassed and bullied. He was put on show by superiors and felt belittled and embarrassed. He spoke with a padre but felt that this did not assist him so he resolved to continue with his training. In March 2007, he commenced a driving course at Puckapunyal but the treatment by superiors continued. He was injured but still compelled to complete the BFA under threat of failing the driver’s course. He moved to Bandiana in April 2007 but was again singled out, bullied and treated unfairly. He experienced panic attacks. When he arrived in Townsville in July 2007, he was humiliated by the CSM who asked him why he had come into his army “broken”. He was downgraded medically on 8 August 2007 which precluded marine specialist training. From August 2007, in Townsville, Mr Roberts was allocated duties on the mail run. He frequently attended the RAP where a duty Corporal treated him badly, challenging him on his right to attend for medical treatment. This was witnessed by a fellow soldier, Private B J Nassif.

Dr Gale Curtis, orthopaedic surgeon

12.     Dr Curtis saw Mr Roberts on 2 April 2008 and completed reports on 4 April 2008 in relation to his feet and back conditions. He described Mr Roberts as having secondary osteoarthrosis in both hips. Dr Curtis saw Mr Roberts again and completed a further report on 27 October 2008. As we read that report, it relates to Mr Roberts’ underlying condition of bilateral acetabular dysplasia which Dr Curtis described as a constitutional, probably genetic, condition. Dr Curtis’ opinion was that Mr Roberts’ duties in the Army exacerbated the underlying condition but that this would not continue indefinitely. He considered that the aggravation of that condition due to his Army service would cease upon his discharge from the Army. As noted above[12], that condition is not before us. The matter on review is osteoarthrosis of the left hip. Dr Curtis noted that Mr Roberts walked with a normal gait. 

[12] See paragraph 1, above.

Dr Phillip Vecchio, rheumatologist

13.     Dr Vecchio saw Mr Roberts on 18 May 2009 and completed a report on 24 May 2009. He also gave evidence. Dr Vecchio noted that Mr Roberts first reported bilateral hip pain on 1 March 2007. He referred to an MRI, conducted on 1 May 2007, which revealed that Mr Roberts had congenitally malformed acetabulae with femoroacetabular impingement, predisposing him to premature osteoarthrosis. He also noted that Mr Roberts was asymptomatic prior to his Army service despite his involvement in sporting activity and work in a range of fields including fruit picking, concreting, landscaping and bus driving. He diagnosed an aggravation of the underlying congenital acetabular dysplasia, which is not before us. However, as we read his report, he also described aggravation of bilateral hip osteoarthrosis to a symptomatic and pathological extent. His opinion was that marching and other physical activities, even after a short period, aggravated and accelerated the underlying condition but he also described an acceleration in the osteoarthrosis condition. He considered that the aggravation was permanent. Dr Vecchio noted that Mr Roberts underwent an arthroscopy by orthopaedic surgeon Dr David Hayes on 16 August 2007. Dr Vecchio’s opinion was that the degenerative labral tear and the superior anterior synovitis noted by Dr Hayes in his report, dated 16 August 2007, confirmed that there had been a change to the underlying pathology in Mr Roberts’ right hip. His opinion was that acceleration of degeneration such as to cause synovitis would equate to permanent aggravation of the hip. Clearly, that procedure was conducted on Mr Roberts’ right hip but, as we read Dr Vecchio’s opinion, his opinion relates to both hips.

Dr Jane Smeeton, Compensation Medical Adviser 

14.     Dr Smeeton completed reports on 29 February 2008 and 7 May 2008. In her first report, Dr Smeeton noted that Mr Roberts had abnormal hip morphology and osteoarthrosis in the hips and concluded that he had an aggravation of signs and symptoms from performing marching drills. She was unable to establish whether there was any aggravation of the underlying pathology due to his service. In her later report, Dr Smeeton adopted the diagnosis given by Dr Curtis, in his earlier report, of bilateral acetabular dysplasia with secondary osteoarthrosis. Her reports pre‑dated that of Dr Vecchio.

Dr E Nicoll, Compensation Medical Adviser 

15.     Dr Nicoll provided a detailed report, dated 7 August 2009, in relation to Mr Roberts’ hip conditions. He had the advantage of seeing the reports of Dr Curtis and Dr Vecchio. He noted that Mr Roberts claimed that he first felt groin pain in February 2007 and that he reported this on 1 March 2007. Dr Nicholl noted the hard physical nature of Mr Roberts’ pre-enlistment employment and as well as a sporting injury to the shoulder. He found it difficult to understand how Mr Roberts’ military employment increased Mr Roberts’ exposure to physical activity. He also noted that Dr Vecchio had based his opinion on Mr Roberts having had no pre-enlistment problems with his hips. Dr Nicholl noted that osteoarthrosis of the hip is frequently the subject of orthopaedic surgery and, as such, considered that it was reasonable to adopt the opinion of orthopaedic surgeon Dr Curtis over that of rheumatologist Dr Vecchio.

CONSIDERATION

Osteoarthritis Left hip

16.     Dr Curtis saw Mr Roberts in relation to his hips one month after discharge. He considered that, at that point, service-related aggravation had already ceased. However, apart from diagnosing bilateral hip osteoarthrosis, we found his report to be unhelpful because it appeared to relate to the underlying congenital condition in Mr Roberts’ hips rather than the secondary osteoarthrosis. Dr Vecchio saw Mr Roberts some eight months after his discharge and found that the hip condition was still present. It is supportive of a causal association between Mr Roberts’ hips and the physical demands of his service. However, for the MRCC to be liable for the osteoarthrosis of the left hip, a factor in the SoP must be met.

17.     Factors (h), (m) and (n) in SoP 14 of 2010 and factors (h), (i) and (j) in SoP 32 of 2005 relate to causal influences. However, the medical evidence is that Mr Roberts’ osteoarthrosis pre-dated his service and was aggravated by it. Accordingly, the relevant factors are (bb), (gg) and (hh) in SoP 14 of 2010 and (v), (w) and (x) in SoP 32 of 2005, which are relevant to the clinical worsening of osteoarthrosis during Mr Roberts’ service. While Mr Roberts experienced pain in January and February 2007 he made a complaint about his left hip on 1 March 2007. We are satisfied that this marks the point of clinical worsening of his left hip osteoarthrosis.

Factors (bb) in SoP 14 of 2010 and (v) in SoP 32 of 2005

18.     These factors require disordered joint mechanics of the hip for a stated period before the clinical worsening of osteoarthrosis in that joint. The definition of disordered joint mechanics in each SoP includes a rotation or angulation deformity of the long[13] bones of the affected limb or a rotation or angulation deformity of the hip.[14] The definition in the earlier SoP also includes “necrosis of bone near the affected joint”, “amputation involving either leg” or “a permanent limp involving either leg resulting from pelvic, thoracolumbar spine, long bone or joint pathology”.

[13] The earlier SoP does not include the reference to “long”.  

[14] The later SoP only refers to “the joint” and not to the “hip” expressly.

19.     Mr Roberts referred to his need to compensate, while walking, for the impairment associated with his accepted condition in the right hip. However, the report of Dr Curtis was that there was no evidence of any abnormality in Mr Roberts’ gait when he saw him in 2008. It is not disputed that Mr Roberts has a congenital hip condition but there is no evidence before us that his congenitally malformed acetabulae with femoroacetabular impingement satisfies the definition of disordered joint mechanics. If it does, we have noted that this has been determined to be unassociated with Mr Roberts’ service. We understand that the RMA has not published a SoP for that congenital condition. 

20.     Mr Clark submitted that, if Mr Roberts’ osteoarthrosis of the hip was dependent on another condition for which the RMA has published a SoP, the requirements of that intermediate SoP must be met. We agree with that submission.[15] He referred us to Instrument No 33 of 2010 which relates to joint instability. For the purposes of that SoP, "joint instability" means “acquired lack of stability of a joint due to damage to or abnormality of the stabilizing structures of that joint, manifesting as recurrent subluxation, recurrent dislocation or recurrent sprain”.[16] Mr Roberts’ evidence was that he had experienced no difficulty in relation to either hip prior to service or prior to the undertaking of various exercises drills in the Army. On that basis, we are satisfied that there was no subluxation, dislocation or sprain of any nature and certainly none of a “recurrent” nature before Mr Roberts reported his left hip problem in March 2007. Accordingly, the SoP on joint instability has no application in this matter. 

[15] See McKenna v Repatriation Commission (1999) 86 FCR 144.

[16] See Instrument 33 of 2010, s 3(b).

21.     There is no evidence before us that reflects any of the components of the definition of disordered joint mechanics and we are satisfied that factors (bb) and (v), in SoPs 14 of 2010 and 32 of 2005 respectively, are not met.

Factors (gg) in SoP 14 of 2010 and (w) in SoP 32 of 2005

22.     These factors require “lifting of loads of at least 35 kilograms while bearing weight through the affected joint to a cumulative total of at least 168,000 kilograms within any 10 year period before the clinical worsening of osteoarthrosis in that joint”. Alternatively, the later SoP requires “carrying loads of at least 35 kilograms while bearing weight through the affected joint to a cumulative total of at least 3,800 hours within any ten year period before the clinical worsening of osteoarthrosis in that joint”.[17]

[17] Each of these in the later SoP also requires that the clinical worsening occur within 25 years.

23.     Mr Roberts described his lifting responsibilities on service and provided a table which set out a record of his lifting and weight bearing activities during his service. The only components of that record which are of relevance to his left hip osteoarthrosis are those which pertain from his enlistment until he made complaint of his left hip condition on 1 March 2007. For that period, the record in the table of weights lifted or borne totalled 44,210 kilograms. No other basis for meeting this SoP requirement was identified. Clearly that is well below the threshold required in the SoP.

24.     We are satisfied that factors (gg) and (w) in SoPs 14 of 2010 and 32 of 2005, respectively, are not met.

Factor (hh) in SoP 14 of 2010 and (x) in SoP 32 of 2005

25.     Factor (hh) in the later SoP requires “being overweight for at least 10 years before the clinical worsening of osteoarthrosis in that joint; or having a waist to hip circumference ratio exceeding 1.0 for at least 10 years before the clinical worsening of the hip osteoarthrosis”. Factor (x) in the earlier SoP requires “being obese for at least ten years within the twenty-five years before the clinical worsening of the osteoarthrosis”.

26.     The definitions in the respective SoPs for the relevant weight limits are expressed in terms of body mass index (BMI). They require an increase in body weight by way of fat accumulation which results in a BMI equal to or greater than 25 or 30, for the newer and older SoPs, respectively. As with the other factors in the SoPs, such a weight gain must have a causal relationship with service. 

27.     On his Entry Level Medical Examination in 11 August 2006, Mr Roberts recorded a weight of 102 kilograms and a BMI at that time of 32. On his Attestation Medical Assessment, dated 8 January 2007, he is recorded at 98 kilograms with a BMI of 32. All other records in service documents record him as being above those weights although he is noted to be 95 kilograms in a report of Dr Vecchio. Mr Roberts said that he now weighs 120 kilograms. 

28.     Those readings leave us satisfied that Mr Roberts was already in excess of the relevant weight limits at the time of enlistment and subsequent readings above the 25/30 BMI thresholds are not related to his service. 

29.     We are satisfied that factors (hh) and (x), in SoP 14 of 2010 and 32 of 2005 respectively, are not met.

Relationship to service

30. We have noted that Dr Vecchio’s opinion was that Mr Roberts’ aggravation of his left hip osteoarthrosis was linked to the tasks undertaken by him during the early weeks of his service. However, the condition may only be related to his service in accordance with the terms of the MRC Act. This requires the SoPs to be applied in the case of osteoarthrosis of his left hip. The requirements of those SoP are not met.

Depressive disorder

31.     Mr Nassif witnessed Mr Roberts being spoken to by the RAP Corporal at Townsville. In a letter, dated 5 February 2008, Mr Nassif confirmed that he had attended a sick parade in February with Mr Roberts when Corporal Lipske asked Mr Roberts what he was doing there and whether he was there to avoid doing a BFA. Mr Nassif wrote that this appeared very abrupt and rude of the Corporal to speak to Mr Roberts in that way.   

32.     In an Outpatient Clinical Record, dated 2 October 2007, Mr Roberts is noted to have “anxiety” with worry about his future in the Army. He is also described as having had a lot of stressors over the past couple of years. On 29 October 2007, he was referred to the Veterans and Veteran’s Families Counselling Service (“VVCS”) by his treating doctor, Dr Mladenovski, because of acute stress and anxiety following his hip surgery as well as from a change of workplace, step fathering of an ADHD child and his wife’s posttraumatic stress disorder after a traffic accident.

33.     In evidence was a series of reports from VVCS psychologists whom he saw from November 2007 until October 2008. In a report, dated 5 November 2007, Mr Roberts is described as having “severely severe” anxiety. It was noted that he had experienced mood disorders, particularly since his surgery in August 2007, and had concerns about his career. A treatment plan was proposed involving therapeutic intervention, psychometric assessment, development of anxiety and stress management strategies as well as effective problem solving and communication skills. This was proposed over 8 – 12 sessions in a 3 – 6 month period. In a further report, dated 21 November 2007, Mr Roberts is noted as having reported abuse and harassment. Depression was noted as mild and anxiety as extremely severe.

34.     In subsequent VVCS reports, Mr Roberts was again noted to be “very anxious”, having panic attacks and trouble sleeping. He referred to family difficulties including problems with his ADHD stepchild. On 21 November 2007, a psychologist noted that Mr Roberts had recently been advised that his father had terminal cancer and he was attempting to get leave to visit him. Later, he advised that he had been refused leave and had not seen his father before he died although he had been permitted to attend the funeral. He described being concerned at being discharged from the Army and what he would then do. He also referred to the treatment he received from superiors and his belief that he was being labelled a malingerer because of his injuries. 

35.     Mr Roberts was referred by his treating doctor to see psychiatrist Dr Stones, who completed an outpatient record on 3 April 2008. Dr Stones noted that Mr Roberts had a violent childhood because of his father, was picked on at school and left school at age 14 years. He listed Mr Roberts’ work experiences as including fruit picking, concreting, labouring, driving buses and completing a real estate sales course which he was unable to convert into work in that field. He tried several times to join the army but was rejected because of a criminal history. He referred to his wife having a motor vehicle accident three years earlier and her inability to get work in part because of injuries she sustained. Dr Stones made a provisional diagnosis of dependent personality disorder. He described frustration with senior officers during his service, which was due to his physical problems. He was in the process of being discharged and was concerned about what work he would do after the Army.  

36.     Dr G Cook, psychiatrist, saw Mr Roberts on 3 April 2009 and completed a report on 28 April 2009. He also gave evidence. Dr Cook diagnosed major depressive disorder, with the predominant problem being the changes that occurred to him secondary to the injuries he sustained to his knees and hips as these had led him to miss his training which, in turn, led to bullying, being vilified and criticised during his army career and subsequent loss of his Army employment. Another problem was the pain he experienced as a result of his right hip surgery. Dr Cook’s opinion was that Mr Roberts’ major depressive disorder was related, to a greater than 50% extent, to those workplace matters. Dr Cook referred to problems that Mr Roberts had when growing up and considered that these made him less well able to handle the difficulties he encountered in his army service. 

37.     The respondent made enquiries to the Department of Defence concerning the issue of bullying raised by Mr Roberts. The response, dated 9 April 2009, from the Ministerial, Redress and Ombudsman Officer was that the records did not indicate bullying of any kind. 

38.     Mr Clark submitted that the clinical onset of Mr Roberts’ depressive disorder was on 2 October 2007, which was the date of the first Outpatient Clinical Record concerning complaint of a psychiatric nature. He submitted that the relevant SoP was No 28 of 2008, as amended by Instrument 41 of 2010, but that none of the factors there listed was satisfied on the evidence. He conceded that Mr Roberts had complained of bullying in the workplace but referred to the absence of any corroborating evidence of the nature or extent of the bullying and the denial of any record of bullying by the Department of Defence. He also noted that Mr Roberts had contended that pain was a causal factor in the development of his major depressive disorder but submitted that the evidence did not support the pain factor in the SoP. 

39.     We accept that the clinical onset of the major depressive disorder was when Mr Roberts first raised the matter of a psychiatric concern on 2 October 2007. The factors relied on by Mr Roberts in SoP No 28 of 2008 are listed above.

SoP Factor 6(a)(ii), (xii)

40.     Factor 6(a)(ii) requires the experiencing of a category 1B stressor within the two years before the clinical onset of depressive disorder. The definition of a category 1B stressor in paragraph 9 includes viewing corpses. Reference was made to Mr Roberts having seen his father’s body at the time of his funeral. Factor 6(a)(xii) identifies being the victim of severe childhood abuse within the 30 years before the clinical onset of depressive disorder. However, neither of those matters has any relationship to his service and we are satisfied that neither of those is a relevant "category 1B stressor”.

SoP Factor 6(a)(v)

41.     Factor 6(a)(v) requires experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder. A “category 2 stressor" includes negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry. The list includes having concerns in the work environment including: on-going disharmony with fellow work colleagues, perceived lack of social support within the work environment, perceived lack of control over tasks performed and stressful workloads, or experiencing bullying in the workplace environment.

42.     We note that there was no formal record of complaint by Mr Roberts about what he perceived and described as bullying or harassment. That, in itself, is not surprising as Mr Roberts’ evidence was that he made only one complaint about the RAP Corporal. However, with two exceptions, his evidence comprised vague references to the conduct of people involved. The exceptions were the RAP Corporal and the CSM in Townsville. Mr Nassif confirmed an incident involving the RAP Corporal but we are satisfied that such a comment, while being disrespectful, would not constitute bullying. Certainly, there was no suggestion by Mr Roberts that the Corporal’s attitude resulted in his not receiving the appropriate RAP treatment. The CSM in Townsville welcomed Mr Roberts with a comment reflective of his injuries. We do not perceive such a comment to be outside the normal range of banter that might be displayed on such an occasion, especially where there was no suggestion by Mr Roberts of a sustained approach to him by the CSM on subsequent occasions. Mr Roberts complained about his duty changes in Townsville such as being placed on the mail run rather than on the marine specialist training he had hoped for. As we understand it, that was due to his medical downgrade and his unsuitability at the downgraded level to undertake his training. 

43.     We are satisfied that the SoP reference to bullying is not made out on the evidence before us.

SoP factor 6(a)(viii)

44.     Factor 6(a)(viii) requires Mr Roberts to have had chronic pain of at least six months duration before 2 October 2007. In that requirement, "chronic pain" means “continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living”. The factor must be related to Mr Roberts’ service and we are satisfied that this would include pain from any condition which has been accepted as being related to his service. Mr Roberts’ accepted conditions relate to sprains in his feet and thoracic spine as well as his right hip osteoarthrosis.

45.      In his various statements, Mr Roberts has not specifically identified pain as a reason for his major depressive disorder. That is consistent with the medical evidence in the six months before 2 October 2007. For example, in his report dated 6 August 2007, Dr Hayes described Mr Roberts as having “regular pain” and he also identified him as having right groin pain after doing a large amount of marching and marking time. Mr Roberts referred to experiencing pain in July 2007 after he completed a BFA which comprised sit-ups, push-ups and a 2.4 kilometre run. He wrote that he felt pain for two days thereafter. Those descriptions do not accord with the requirement in the factor that the pain be continuous or almost continuous. The absence of material reference to pain in his statements is also consistent with the concerns he expressed to the various psychologists he has seen. Their reports refer to pain at times but the main concerns of Mr Roberts were other matters such as his pending discharge, future work prospects, family difficulties, his treatment by superiors and his father’s illness. 

46.     We are satisfied that the pain-related factor is not made out.

Relationship to service

47. Mr Roberts’ major depressive disorder may only be related to his service in accordance with the terms of the MRC Act. This requires SoP 28 of 2008 to be applied in Mr Roberts’ case. We are satisfied that the requirements of none of the factors in that SoP are met in Mr Roberts’ case.

DECISION

48.     The decision under review is affirmed.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

Signed: .......................[Sgd]..............................................................
  Mark O’Brien, Research Associate

Date/s of Hearing  28 and 29 September and 13 October 2011
Date of Decision  25 November 2011
The applicant was self-represented            
Counsel for the Respondent     Mr Charles Clark
Solicitor for the Respondent     Mr Peter Crethary, Dibbs Barker