Soltysiak and Military Rehabilitation and Compensation Commission
[2004] AATA 1224
•19 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1224
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/19
GENERAL ADMINISTRATIVE DIVISION ) Re SOPHIA TIJANA SOLTYSIAK Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Dr ET Eriksen (Member)Date19 November 2004
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and substitutes a decision that:
(1) The Commission is liable to pay compensation to the applicant in relation to the conditions of bilateral sacroiliitis and ankylosing spondylitis as and from 20 January 1999.
(2) As at 31 July 2002 the Commission is no longer liable to pay compensation to the applicant for the conditions of bilateral sacroiliitis and ankylosing spondylitis, as the circumstances entitling payment under ss 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 can no longer be made out by the applicant.(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – work-related injury – aggravation of underlying ankylosing spondylitis condition – effects of aggravation continuing – decision set aside
Safety Rehabilitation and Compensation Act 1988 s 24
Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538
Dibbins v Dibbins (1978) 80 LSJS 165
REASONS FOR DECISION
19 November 2004 Senior Member WJF Purcell
Dr ET Eriksen (Member)1. This is an application for review of a decision of the respondent (the Commission) of 13 November 2002, which affirmed two determinations of 24 June 2002, that liability in respect of bilateral sacroiliitis ceased with effect from 31 July 2002, and that the Commonwealth was not liable to pay compensation on and from that date; and that liability does not exist to pay compensation for ankylosing spondylitis.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the parties. The applicant, who was represented by Mr Winship, gave oral evidence. Ms Bean was counsel for the Commission, which called Dr N McGill, Consultant Rheumatologist, and Dr M Awerbuch, Consultant Physician in Rheumatology, as witnesses. Dr McGill gave evidence by way of telephone link-up.
3. The applicant, who is 31 years of age, enlisted in the Royal Australian Air Force (the RAAF) on 25 August 1992. She was injured during a Green Exercise at No. 2 Control and Reporting Unit, at RAAF Base Darwin, between 19-23 October 1998. She was discharged from the RAAF on 1 December 2001, on medical grounds. At the time of her discharge, the applicant held the rank of Corporal.
4. On 20 July 2000 the applicant lodged a claim for compensation in relation to a condition she described as “pelvic area arthritis”. She described the injury as occurring whilst she was on exercise, and caused by diving to the ground as a member of a quick reaction force during a green exercise at 2CRU during the period 19 to 23 October 1998. On 16 August 2000 the Department of Veterans’ Affairs (the Department) accepted liability in respect of the condition of “bilateral sacroiliitis”, with the date of injury as 20 January 1999, being the date upon which the applicant first sought medical treatment for the claimed condition.
5. On 28 March 2001 the applicant lodged a claim for compensation for permanent impairment and non-economic loss. By report dated 2 August 2001, Dr Lewis, Consultant Occupational Physician, assessed the applicant’s whole person impairment as a result of this condition as 10%. The applicant was awarded $12,324.32 compensation, as an interim payment, in respect of her whole person impairment pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988 (the Act) pending further investigations in relation to her claim. No further payment was made, as the Department determined on 10 July 2002 that further medical evidence indicated that the Commonwealth was no longer liable for payment of compensation for the condition. The Department also determined that it would not recover the interim payment, which it considered had been made on a basis that could no longer be sustained.
6. On 31 August 2001, the applicant lodged a request seeking an extension of the Department’s liability to include a condition described as “ankylosing spondylitis”. On 24 June 2002 the Department issued two determinations. The first determination decided that liability in respect of the accepted condition of “bilateral sacroiliitis” had ceased, with effect, from 31 July 2002, as the delegate considered that there was insufficient evidence to show that the applicant’s service-related factors had a continuing effect on her condition. The second determination decided that liability did not exist to pay compensation, or extend liability, for the condition of “ankylosing spondylitis”, as the medical evidence did not establish that this condition was caused by the applicant’s military employment. In July 2002 the applicant sought a reconsideration of both determinations.
7. On 13 November 2002, a reviewable decision was issued by the Department which affirmed both determinations. With respect to the first determination which ceased liability for the condition of “bilateral sacroiliitis”, the Review Officer referred to the medical evidence provided by Dr Awerbuch, Consultant Physician, which he stated was to the effect that the applicant’s military employment was definitely not the cause of her current condition; and that she would have contracted the condition irrespective of her military employment, and any incident of trauma.
8. With respect to the second determination denying the applicant’s request for extension of liability to include the condition of “ankylosing spondylitis”, the Review Officer referred to the medical evidence of Drs Awerbuch, Hill and Shanahan, who he stated all agreed that the condition of “bilateral sacroiliitis” and “ankylosing spondylitis” were not separate conditions; rather that “bilateral sacroiliitis” is the name given to the clinical manifestation of “ankylosing spondylitis”. The Review Officer was satisfied therefore, that the Commonwealth was not liable to pay compensation, on and from 31 July 2002, for bilateral sacroiliitis or ankylosing spondylitis.
9. The applicant has applied to this Tribunal for review of that decision, and submits that the specific condition is “ankylosing spondylitis”. “Bilateral sacroiliitis” is not a separate condition, but the name given to the clinical manifestation of “ankylosing spondylitis”. The Department accepted that the “bilateral sacroiliitis” was related to her injury, and it is liable therefore, to pay compensation in respect of the condition of “ankylosing spondylitis” with effect from 31 July 2002.
10. The applicant maintains that at the time of the injury she was a Leading Aircraft Woman with an asymptomatic condition of ankylosing spondylitis. The cause of ankylosing spondylitis remains unknown, so the injury during the period 19-23 October 1998 (the 1998 injury) did not cause the condition but precipitated it. The trauma injury aggravated the underlying condition. This aggravation has permanently affected the applicant, and she is entitled to compensation for permanent impairment in accordance with the Act. She maintains also that the 1998 injury accelerated and exacerbated the underlying condition, and continues to do so. She has outlined truthfully in her evidence the details of the 1998 injury, and the ongoing symptoms she suffers, and it is a presumption of fact that the work related injury materially contributed to her ongoing condition, the “prescriptive influence”. She relies on AdelaideStevedoring Company Limited v Forst (1940) 64 CLR 538 wherein Acting Chief Justice Rich said at p 563-4:
“…
I do not see why a court should not begin its investigation i.e. before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on his stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences. …”
11. The Commission agrees now, that the condition of “ankylosing spondylitis” is a genetic condition, an inflammatory disorder that is correctly characterised as a “disease” under the Act, and that “bilateral sacroiliitis” is a manifestation of the disorder. It would clarify the position, and it would not be inappropriate, therefore, for the Commission to accept liability for both conditions until 31 July 2002.
12. The Commission submits however, that to draw the “presumptive inference” from the applicant’s symptoms is to ignore the medical evidence, or to draw conclusions against the evidence – an error of law. There is no issue with the applicant’s credibility and veracity. It submits finally, that the development of the applicant’s ankylosing spondylitis was not in any way contributed to by her employment; and that any aggravation of the condition as a result of the 1998 injury, was temporary.
13. The applicant gave detailed oral evidence regarding the details of the 1998 injury, and her ongoing symptoms. She impressed us as a witness of the utmost integrity. Her history was an excellent narrative of development of the condition, and its aftermath. We accept that she had been an otherwise fit and healthy person, and in fact an elite athlete. She had 6 years of service in the RAAF behind her when she undertook the exercise, as part of an elite course. In full combat gear, and in simulated combat, she dived onto a hard rock surface, and she immediately experienced left lower buttock pain. We accept that she reported her injury to the First Aid post, but said that she would not seek treatment unless there were severe symptoms. She set out, succinctly, these circumstances in her statement of 13 August 1999, which reads as follows:
“There was a Green Exercise at 2CRU from the period of the 19th – 23rd of October 1998.
During this time, there was a period were [sic] I was to act as Quick Reaction Force (QRF) for a period of 2 days during the exercise. Whilst acting as QRF we were doing Fire and Movement over rocky, uneven ground. I was wearing DPCU’s, full webbing, carrying 6xmagazines of full, blank rounds, and a loaded F88 Rifle with BFA.
During this time we were being attacked and the QRF were told to get into position outside the perimeter of 2CRU. Whilst performing the Fire and movement I ended up having to dive into rocks and shrubs numerous times and then firing my weapon.
After the crossfire had ended I realised I had taken a bit of skin off of my arm. I stood up and I felt a sharp pain in my left buttock. Feeling this I thought I had just pulled a muscle there.
Once the exercise had finished I kept getting a ‘twinge’ in my buttock and just put it down to being a pulled muscle.
After that I went on Xmas leave. The pain gradually went from my buttock, down my thigh, across my knee and down my calve [sic]. This was just from walking around. I couldn’t sleep properly, walking was an effort and had trouble sitting and then trying to stand.
When my Christmas leave was finished I went to medical at RAAF base Darwin and told them how the pain had gradually progressed. I was firstly sent to the physio for 3 weeks but the ultrasound was not helping. Then I was sent to a nerve specialist who had no conclusion to the problem. Whilst this was happening the pain went into my right buttock and then the same thing happened. It started in my buttock, down my thigh, across my knee and eventually into my calf.
It took 3 months to see the nerve specialist. Because there was no luck there I was sent to a muscle specialist. It took 7 to 8 weeks to see him as well. He put it down to being a non-specific back problem and sent me back to physio. Once again the pain still progressed from leg to leg and the physio continued ultra sound, but no solution. In March of 99, Dr Berrill informed me not to put the incident report in until we had an answer. Now that the problem is ‘on going’ Dr Berrill suggested we put the paperwork in now. I am now waiting to see another back specialist on the 24th of August. I have had numerous days off work and the pain in incredible.
I am usually a very active and fit person and have played a lot of Interservice Basketball and Combined as well as numerous other sports. Now I cannot even walk 100 meters without being in excruciating pain. My relationship has also suffered immensely. When I sleep I have to take numerous painkillers just so I can lie down. The whole thing is very frustrating and is continuing to be a very emotional and mental strain.” [T4/45-46]
14. On 30 January 2000, the applicant provided additional information:
“Further to my report dated on the 13 August 99:
In the month of October 1999 I was forwarded to Dr. Nyunt. He sent me to get a bone scan done at Darwin Private Hospital. The conclusion of the scan showed evidence of bilateral sacroiliitis.
I then had another blood test and that proved to be positive showing the HLA B27 gene. Dr Nyunt’s opinion was that I am suffering from a type of arthritis that [is] found to be ankylosing spondylitis.
I am now on stronger NSAIDS, (anti-inflammatory) which have quite a lot of side affects. Without taking these every day the pain comes back straight away. I have been informed that I have to take these for the rest of my life.
It is now January 2000 and I have since seen Dr Salva who has helped me to understand the condition that I now have. Because of everything I went through last year I have been having anxiety attacks, trying to accept what I now have and the fact that I have to control it so it doesn’t progress up my spine and fuse my joints. In my report dated on the 13th August 1999, I had said it has been a mental strain. Now knowing that I have a type of arthritis at the age of 27, dealing with it emotionally and mentally whilst living with it, is still something I have to try to come to terms with.” [T5/47]
15. The applicant gave evidence that she thought that she had “pulled a muscle”, and expecting a resolution of symptoms she continued the ground force exercise for a further 2 days, and returned then, to normal duties. She described sciatic radiation with the pain radiating into the right leg, across the knee and down into the foot. Upon her return from holidays, in January 1999, she attended at the Air Force Medical Branch at Darwin, and consulted Dr A Berrill. Studies of the sciatic nerve, MRI scans and CT scans were normal, and plain x-rays of the pelvis were normal.
16. Dr N McGill, Consultant Rheumatologist, who examined the applicant on 26 June 2003, re-examined at that time the imaging studies the applicant brought with her. In his report of the same date he stated, in part:
“…
X-rays of the pelvis and sacroiliac joints performed 8 February 1999 were reported to be normal. I thought the left sacroiliac joint was sclerotic and had poorly defined margins. The interpretation of sacroiliac joint x-rays is notoriously difficult and experienced observers frequently disagree about early changes. Although I am aware that I have the benefit of her history I think there is no real doubt that her left sacroiliac joint was radiologically abnormal at that time.
…” [Exhibit A2]
17. In our view, it is regrettable that these radiological changes were not correctly interpreted at the time, and her condition of bilateral sacroiliitis was not diagnosed until October 1999. We consider that earlier diagnosis would have reduced her anxiety, and allowed treatment options to be instituted to relieve her symptoms.
18. In the meantime, the applicant was referred to Dr J Burrow, Neurologist, who reported on 22 April 1999 that he had examined the applicant and reviewed the radiology. He concluded:
“The features are of neuralgic pain for which there is no obvious cause. There is no evidence of disc prolapse or nerve root irritation by any mass lesion or bony element. Some features of the history, that is relief by sitting and aggravation by walking suggest a mechanical element to the symptoms perhaps indicative of an orthopaedic or skeletal problem but I doubt any specific diagnosis can easily be made. An orthopaedic opinion would be valuable. I have encouraged Sophia to maintain her mobility and indicated that she should expect her pain to settle over the coming months.” [PT3/26]
19. Mr Baddeley, Orthopaedic Surgeon at Darwin Private Hospital, examined the applicant on 8 June 1999, and reported in part:
“… There is no significant tenderness around the lumbar spine and she has a negative femoral stretch test with a negative sciatic stretch test and some hamstring tightness noted. There are no signs of nerve root tension and neurological examination is normal.
A CT scan and MRI scan are within normal limits and demonstrated a conjoined nerve root on the right side.
I do not feel that Sophia’s problem is radicular in origin and I feel that she has a non-specific musculo-fascio ligamentous problem. I believe that she has an excellent chance of settling spontaneously with a graduated, supervised, intensive abdo-flexor obliques rehabilitation exercise programme. I have given her a letter to the physiotherapist at RAAF Darwin to commence this.” [PT3/29-30]
20. On 6 September 1999 Dr Berrill referred the applicant to Mr Nyunt, Consultant Orthopaedic Surgeon. An Immunopathology Report of 16 November 1999 detected HLA B27 antigen, which supported the diagnosis of ankylosing spondylitis. The bone scan of 27 October 1999 showed evidence of bilateral sacroiliitis. Mr Nyunt reported on 30 November 1999, in part, as follows:
“…
In my opinion I think she may be suffering from early ankylosing spondylosis. As you know ankylosing spondylosis can proceed on to ankylosing of the spine then extending to most of the central joints. I advised her to continue on non steroid anti inflammatories that you have given her, that is Indomethacin. If the pain flares up and it is not controlled by Indomethacin, we will probably have to use Butzaolidin, which I think you are only allowed to use in the case of ankylosing spondylosis.
She also needs active exercises like swimming. The most important thing for her is to prevent the progression of stiffness of her joints.” [PT3/38]
21. There has been a progression since then to the mid (thoracic) spine with pain and stiffness of the chest due to involvement of the rib cage. When diagnosed she developed subsequently symptoms of stress/anxiety/panic attacks. The diagnosis was devastating in its effect on her life. Her stress, anxiety and panic attacks have stabilised now with treatment. The applicant, who married recently, faces an uncertain future, particularly in relation to child bearing, and her apprehension, frustration and devastation at what has befallen her is overwhelming. She believes fervently, as does her counsel, Mr Winship, that the 1998 injury has affected her permanently, and continues to do so. Apart from some internet references to studies of the relationship of trauma to development of an exacerbation of the underlying condition, the applicant produced no documentary or oral evidence in support of her assertion. In our view, neither of these assertions is supported by the medical evidence.
22. In many compensation cases there is a body of conflicting opinion in the documents before the Tribunal, and in the medical evidence presented at the Hearing. In such cases where medical evidence is in conflict, the primary consideration may be the credibility of the applicant. In Dibbins v Dibbins(1978) 80 LSJS 165 Bright J approached such a problem in this way:
“…
Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central, not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognize this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Very often there is no reliable independent corroboration of the patient’s account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient.
…”
23. In this matter, however, there is no question in relation to the applicant’s credibility, nor is there conflict in the medical evidence; all the medical evidence points in the same direction.
24. Subsequent to the applicant’s transfer to Adelaide in the year 2000, she was referred for treatment to Dr M Awerbuch, Consultant Physician in Rheumatology. Dr Worthley at RAAF Base Edinburgh provided the background history, and Dr Awerbuch reported to Dr Worthley on 11 July 2000, that the applicant had ankylosing spondylitis, and that he had emphasised to her the importance of regular exercise to maintain spinal mobility. He had prescribed Indocid suppositories, and would review her in 3 months time. Dr Awerbuch reviewed her on 16 November 2000, 13 February 2001, 22 May 2001, and 17 August 2001.
25. On 16 August 2000 the Department accepted the applicant’s claim for compensation for an “arthritic pelvis condition”, described later as “bilateral sacroiliitis”, with a date of injury of 20 January 1999, being the date she first sought medical treatment for the claimed condition. She was discharged from the RAAF on medical grounds on 1 December 2001. She was referred by the Department to Dr M Shanahan, Consultant Physician in Rheumatology, at the Repatriation Hospital, Daw Park, for an assessment for permanent impairment, which took place on 13 December 2001. On 29 January 2002 Dr Shanahan, in answer to specific questions from the Department, stated that the applicant’s “ankylosing spondylitis” was not caused by the 1998 injury. Previously the condition had been undiagnosed, but he considered it reasonable to state that the condition was aggravated by the event. He stated also that “bilateral sacroiliitis” is not a separate condition, but the clinical manifestation of “ankylosing spondylitis”. He concluded:
“ … In other words, once you accept that the bilateral sacroiliitis is related to her injury then you are accepting that the condition of ankylosing spondylitis is related to her injury.
…” [T45/151]
26. On 4 April 2002 Dr Awerbuch, in answer to specific questions from the Department, stated that in his view, the applicant’s military employment was definitely not the cause of her current condition; that ankylosing spondylitis is a disease that may first manifest itself in young people as an inflammatory disorder of a peripheral joint (often a knee or an ankle); that the applicant would have contracted her current condition irrespective of her military employment, and irrespective of any incident of trauma. He stated that the issues of trauma exacerbating or precipitating ankylosing spondylitis have been specifically addressed in the literature; and that no proof has been found that the cause of ankylosing spondylitis is exacerbated by trauma. What is recognised is that unaccustomed immobilisation or rest following trauma may temporarily aggravate the symptoms of ankylosing spondylitis, or alternatively bring the symptoms to the patient’s notice, possibly for the first time. Dr Awerbuch reiterated these views in his oral evidence, and stated that any exacerbation of the condition, by the 1998 trauma, would have lasted a number of weeks; and that the incident did not change the course of the disease which would have become manifest within 6 months of October 1998, in any event.
27. Dr W Hill, who has been treating the applicant since 6 December 2001, replied to the Department’s specific questions on 7 May 2002, in part, as follows:
“…
3.The Military employment the principal cause. This is an illness, which arises of unknown cause. Of course it can be aggravated and the person may actually be unaware of the presence of the condition until such a physical aggravation occurs that symptoms become noticeable. Therefore Military employment was not the cause of the illness. Neither was it the cause of her current level of symptoms, that is due entirely to the underlying nature of the illness and although symptoms were provoked by injury some years ago no further aggravations have occurred. With ankylosing spondylitis the normal activities of daily life will put pressure across the back and result in symptoms. Accidents and injuries would cause more physical strains of a momentary nature, which would cause increased symptoms, which would settle back to the baseline after a period of time.
4.Aggravation acceleration or recurrence occurring in military employment. I don’t believe any of the activities would have accelerated the condition, which has its own level of involvement. Aggravations would occur due to any increased physical activity or any injury situation. These would settle with appropriate management and of course the best treatment for this condition is a programme of stretching an strengthening exercises for all levels of the spine, which would have the tendency to aggravate symptoms, but in a controlled way in order to get the benefits of maintaining a full range of movement.
5.…
6.The extent of contribution by employment to the contraction of the disease – none. Aggravation I would have to use the words moderate and transient. Acceleration – none. Recurrence – none.
7.The employment factors that contributed to her current situation. The incident of back injury in effect discovered the problem that was already developing and would have become symptomatic with the passage of time. Those employment factors were therefore related to the heavy physical activity and physical training involved with some risk of injury which did eventually occur and the effect was therefore of a transient nature. The point to stress is that the condition is an illness which develops and is often discovered by an episode of increased symptoms due to injury and that the management of the condition does involve as strenuous physical activity in stretching exercises as is possible without provoking excess symptoms to maintain a full range of movement in the presence of a condition that causes painful stiffness in the spine.
8.Military employment related aggravations to continue, in my opinion these would terminate with the move to duties that did not involve the risk of jarring injuries.
9.As already stated I think the military employment effects ceased when the move to protected duties occurred.
10.Management of the condition continues to be a vigorous stretching exercise programme, anti-inflammatory analgesics and she will continue with the disease suppressing drug. Because of the dyspepsia induced by medication she continues with medication for dyspepsia as well. The mainstay therapy for this condition is anti-inflammatories and a vigorous stretching exercise programme to prevent permanent restriction developing.” [PT54/174-175]
28. On 5 June 2002 Dr Hill reported to the Department in the following terms:
“…
2.My understanding was that the fall in October 1998 actually resulted in back pain, which took some considerable time to diagnose as coming from an underlying and previously undiagnosed sacroiliitis. It would be considered that the fall brought out symptoms of a condition, which was already present and therefore aggravated it.
3.The effects of the fall were such to aggravate the symptomatology but once developed those symptoms would persist, continue and spread on their own following the course of the naturally occurring illness of ankylosing spondylitis. It would be considered that eventually symptoms would have become manifest of their own accord but of course one cannot predict at what age and stage the symptoms would naturally occur in this condition. While her symptoms do continue now it would be difficult to say that the effects of an incident of trauma had any longer term influence on the symptomatology than a few weeks.” [T56/180]
29. Dr McGill in his report of 26 June 2003 stated:
“…
This 30 year old lady has ankylosing spondylitis. The diagnosis is based on her history (which although difficult in the early stage is now characteristic of inflammatory back disease), bone scan and radiological evidence of sacroiliitis and her positive HLA B27.
She today reported that she first became aware of her symptoms after a particular dive during a one week physical exercise period. The histories recorded closer to the time suggested that there was no specific event but that her symptoms developed during the week of increased physical activity and became much more troublesome in the subsequent weeks and months.
With respect to the Schedule of Questions:
The diagnosis is ankylosing spondylitis. Bilateral sacroiliitis is a part of that illness.
Her employment with the Army [sic] was definitely not the principal cause of this condition.
She would have contracted ankylosing spondylitis regardless of her employment with the Army [sic] (definite). With respect to the options provided in Question 4 in regard to the extent to which her employment with the Army [sic] contributed to the contraction, aggravation, acceleration or recurrence of the condition, I believe the correct answer is “0-9%”.
I think it is possible that she experienced more soreness than would have otherwise been the case during the week of her Army [sic] exercises in 1998 and possibly for the following couple of weeks. I do not think that the physical exercises she was involved in at that time influenced the timing of her presentation and I do not think those activities have had any influence on her subsequent progress or level of symptoms. The treatment she has received since recognition of the diagnosis of ankylosing spondylitis has been entirely appropriate.” [Exhibit A2]
30. In his oral evidence, Dr McGill said that a few days after the 1998 injury the applicant would have been in the same condition regardless of the exercise; although it was not unreasonable that she thought the incident was relevant to the injury. He said that he did not believe that the incident caused any acceleration or exacerbation of her condition.
31. We accept Dr McGill’s evidence that the x-rays of 8 February 1999 showed evidence of bilateral sacroiliitis. We are satisfied on the evidence and find as a fact that although the condition was asymptomatic before the date of the 1998 injury, there was radiological evidence of joint involvement present at the time of injury. We are satisfied on the evidence also that the onset of right buttock/right leg pain in February/March 1999 was a manifestation of right bilateral sacroiliitis, progression of bilateral sacroiliitis, which was not related to the trauma of the 1998 injury or influenced by it. We accept the opinions of Drs Hill and Shanahan, and the evidence of Drs McGill and Awerbuch that had the trauma of October 1998 not occurred, the applicant would have been experiencing symptoms of bilateral sacroiliitis within (say) 6 months. We accept the preponderance of the evidence, that the 1998 injury aggravated or exacerbated the applicant’s condition in the range of 2-3 days to 2 months.
32. We are satisfied on the whole of the evidence that the applicant cannot succeed in her application for review; but in light of the Commission’s acceptance, now, of liability for the condition of ankylosing spondylitis, and our findings of fact, it is appropriate that the decision under review be set aside, and a decision substituted which reflects these circumstances.
33. For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision that the Commission is liable to pay compensation to the applicant in relation to the conditions of “bilateral sacroiliitis” and “ankylosing spondylitis” as and from 20 January 1999; and, as at 31 July 2002, the Commission is no longer liable to pay compensation to the applicant for the conditions of “bilateral sacroiliitis” and “ankylosing spondylitis” as the circumstances entitling payment under ss 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 can no longer be made out by the applicant.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell and Dr ET Eriksen (Member)
Signed: .....................................................................................
AssociateDates of Hearing 29/30 April 2004
Date of Decision 19 November 2004
Counsel for the Applicant Mr B Winship
Solicitor for the Applicant Fairbairn Lawyers
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent AGS
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