Steegstra and Military Rehabilitation and Compensation Commission

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 12
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1052

GENERAL ADMINISTRATIVE DIVISION )

Re TIM STEEGSTRA

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date13 January 2012
PlaceBrisbane

Decision The decision under review is affirmed.
................[Sgd].....................
Deputy President

CATCHWORDS
MILITARY COMPENSATION - right knee injury – member of RAAF - whether injury attributable to defence service – lack of evidence of circumstances of injury - decision under review affirmed
Military Rehabilitation and Compensation Act 2004 (Cth) ss 23, 27
REASONS FOR DECISION

13 January 2012 Deputy President P E Hack SC

Introduction

The applicant in these proceedings, Mr Tim Steegstra, served in the Royal Australian Air Force (RAAF) between October 2002 and October 2008. He complains of right knee dysfunction which he attributes to his service in the RAAF. The respondent, the Military Rehabilitation and Compensation Commission, was not satisfied that the condition of Mr Steegstra’s knee was attributable to his service. It rejected his claim for compensation and maintained that decision on reconsideration.
Mr Steegstra has sought a review of that decision in the Tribunal however, as will appear, I am of the view that the decision was correct. It will be affirmed.
Factual background
There is a considerable history of injury to Mr Steegstra’s right knee. In about May 2003 he sustained an injury to it when riding a motor bike. Imaging done at the time showed a posterior cruciate ligament injury and some damage to the medial collateral ligaments[1]. Arthroscopic surgery was undertaken in September 2003, an operation said[2] to have involved excision of tissue from the region of the intercondylar notch. The knee continued to cause pain and in April 2005 a further arthroscopic procedure was undertaken on Mr Steegstra.
[1] Exhibit 1, page 296.
[2] Exhibit 1, page 28.
Mr Steegstra apparently made a good recovery. On 12 October 2005 he saw Dr Matthew Valentine, an RAAF doctor, and reported that he had no pain or discomfort and no problems running on hard surfaces[3]. On the following day he undertook his periodic medical classification and was graded as “MEC1 – medically fit without restriction, for deployment.”[4] He acknowledged that classification by countersigning the document on 26 October 2005.
[3] Exhibit 1, page 191.
[4] Exhibit 1, page 370.
During all of this time Mr Steegstra was a live-in member at the RAAF Base, Richmond, that is, he resided in quarters at the Base. His case is that on 27 October 2005 (a Thursday), a little before 7:30am when he was due at assembly, he was walking down stairs from his quarters when he slipped and hurt his right knee. He was in great pain and his knee was swelling. He was intending to go to his work area but because of the pain he attended the base hospital where he was seen by a medical officer who provided him with crutches and an elastic knee cover to help compress the swelling. He then presented at his work but because of his condition he “was awarded a day or two off duty.”[5]
[5] Exhibit 1, page 74 at [18].
The next relevant event, Mr Steegstra says, occurred on the following Monday, 31 October 2005. His account of that event is as follows:
“On that Monday morning I proceeded to go have a shower before work. The shower block was on the level below my room but in the same building. I came down the stairs and went from the stairs about 10 meters to the entrance to the shower area. I still had my crutches with me at the time. There is some sort of linoleum type surface in that area and I slipped on something wet under one leg. My leg went out from under me and he twisted somehow and hurting my right knee. I was lying on the floor for about half a minute in pain when LAC Mark Wootton came into the communal showers. When saw me [sic] on the ground he laughed but then he realised I was in tremendous pain and so he helped me up and then helped me to my car. I then proceeded to drive to the Base Hospital (3 CSH).” [6]
[6] Exhibit 1, para 21 p 74 at [21].
There is no doubt that Mr Steegstra saw Dr Valentine at 3 Combat Support Hospital (3 CSH) on that day. That doctor’s clinical notes (with abbreviations in full) read,[7]
[7] Exhibit 1, page 134.
“Presents with recurrence injury right knee
Known ruptured posterior cruciate ligament
Last week walking downstairs backwards and felt knee slip backwards with pain ++. Still feels unstable and sore
Observed mild swelling
Full range of movement
Negative lachmans and pivot shift
Plan – No unit physical training for 2 weeks
Own physical training own prac
Physio”
No reference is made in the notes to Mr Steegstra attending using crutches or being prescribed crutches nor is there any reference to him being given any time off. That latter point is important because Mr Steegstra says[8] that on this occasion he was given five days sick leave.
[8] Exhibit 1, page 62 at [2.5].
Also available is a copy of Dr Valentine’s letter of referral to a physiotherapist on 31 October 2005[9]. It makes reference to Mr Steegstra having “a known tear of his [posterior cruciate ligament]” which had been “reinjured last week whilst walking down stairs backwards”.
[9] Exhibit 1, page 275.
On 2 November 2005 Dr Valentine referred Mr Steegstra to Dr Anthony Kwa, an orthopaedic surgeon[10]. Mr Steegstra saw Dr Kwa in February 2006 and the possibility of an anterior cruciate ligament reconstruction was discussed. That surgery was performed March 2007.
[10] Exhibit 1, page 272.
Mr Steegstra made a claim for compensation for his right knee in July 2010. It is material to note that he had earlier made a claim for a right knee injury which had occurred on 7 July 2007 but did not press that claim once he realised that the injury had not occurred in compensable circumstances. In any event the July 2010 claim was rejected on 16 September 2010, a decision affirmed on reconsideration on 24 February 2011.
the applicant’s case
Mr Carey, counsel for Mr Steegstra, advanced his case on two bases. First, he submitted, Mr Steegstra should be accepted as a reliable historian, despite the absence of contemporary medical records, who has provided an account of an incident which occurred on 27 October 2005 whilst he was rendering defence service.
Alternatively, it was submitted, even if Mr Steegstra be regarded as unreliable, there was objective evidence in Dr Valentine’s clinical notes that enabled an inference to be drawn that Mr Steegstra must have sustained an injury on 27 October 2005 (or thereabouts) and that it must have arisen from an event that occurred whilst he was rendering defence service.
the legislation
Given the manner in which the case was presented it is only necessary to make brief reference to the legislative setting. Mr Steegstra’s claim fails to be determined by reference to the Military Rehabilitation and Compensation Act 2004 (Cth) (the MRC Act). By virtue of s 23(1) of that Act the Commission must accept liability for an injury[11] sustained by a person if,
[11] It is common ground that Mr Steegstra’s condition falls to be considered as an injury rather than as a disease.
(a) the injury is a service injury under s 27 of the MRC Act; and
(b)the Commission is not prevented from accepting liability by the exclusions in Part 4 of Chapter 2 of the MRC Act; and,
(c) a claim has been made in the prescribed manner.
The Commission accepts that none of the exclusions apply[12] and there is no suggestion that an appropriate claim has not been made. Section 27 deems an injury to be a service injury if, relevantly,
“(a)the injury…resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury…arose out of, or was attributable to, any defence service rendered by the person while a member;…”
It is common ground that Mr Steegstra’s service with the RAAF was defence service. Finally, the connection between the claimed injury and the rendering of service is to be tested by reference to the applicable Statement of Principles made by the Repatriation Medical Authority, in this case that concerning acute sprain and acute strain, No 70 of 2010.
[12] Exhibit 6, paragraph [15]
consideration
As will be apparent from the foregoing there is considerable cause to doubt the reliability of Mr Steegstra’s account of the two separate falls on 27 and 31 October 2005. His account is contradicted by the contemporaneous documents, in particular the clinical notes of Dr Valentine. There are no leave records of the type that would be expected had Mr Steegstra been given time off duty on both 27 October 2005 and 31 October 2005. Moreover Mr Steegstra’s account has varied considerably over time. His first statement, that of 8 May 2008,[13] is absent any reference to an earlier fall; it refers only to a fall which was assumed to have occurred on 31 October 2005. The same is true of his supplementary statement of 6 April 2010.[14]
[13] Extracted in exhibit 1, page 71 at [6].
[14] Exhibit 1, page 62 at [2].
No mention of an earlier fall was made to either of the orthopaedic surgeons seen by Mr Steegstra for the purposes of a medico-legal opinion – Dr Rodney Simm on 18 February 2009[15] and Dr Hugh English on 8 December 2009[16].
[15] Exhibit 1, pages 27-38.
[16] Exhibit 1, pages 44-51.
It is also obvious from Mr Steegstra’s most recent statement, that of 19 July 2010[17], in which reference to two separate incidents is first made, that it is the product of reconstruction. I am unable to accept that it was the product of any accurate recollection on the part of Mr Steegstra. I find myself well short of being satisfied that Mr Steegstra’s present account is accurate. I should say that I do not suggest that Mr Steegstra is being deliberately untruthful, rather I think that this is a case where he has persuaded himself of the truth of what, to his mind and by reference to the documents, must have happened.
[17] Exhibit 1, pages 70-74.
In reaching that conclusion I have not overlooked the evidence of Mr Mark Wootton who professes a recollection of having seen Mr Steegstra at work in late October 2005 on crutches and having found him in pain having fallen in the shower block on what must, if the evidence was reliable, have been on 31 October 2005. But if Mr Steegstra’s account of events is accurate Mr Wootton would not have seen him at work on crutches after an incident on 27 October 2005; according to Mr Steegstra he did not return to work after that fall. I am unable to accept Mr Wootton’s evidence.
It follows that I am not satisfied that Mr Steegstra’s injury was sustained in the circumstances that he describes.
It remains then to consider the alternative case, that a fall of some description occurred some days prior to 31 October 2005 and that, by necessary inference, it arose out of, or was attributable to, Mr Steegstra’s defence service.
I am satisfied that Mr Steegstra did fall and injure his knee in the week prior to 31 October 2005. So much is demonstrated by Dr Valentine’s clinical notes and the signs of swelling observed by him. Those observations sufficiently demonstrate the existence of either of the factors in paragraphs (a) and (b) of clause 6 of the Statement of Principles concerning acute sprain and acute strain No. 70 of 2010.
But I am not satisfied that there is an inference, reasonably open, that Mr Steegstra’s fall or slip was related to his defence service. It may be accepted, and as I understand the Commission does accept, that there would be a sufficient relationship between an injury and Mr Steegstra’s service had the injury occurred when Mr Steegstra slipped or fell in the course of a journey between his quarters and the base gym. However, Mr Steegstra’s evidence does not satisfy me that there was such a slip or fall.
Mr Steegstra accepted that he “must have” told Dr Valentine of an incident which occurred when “walking backwards downstairs” but does not now suggest that there was such an incident. He does not suggest any occasion, in the course of his service, when he might have walked down stairs backwards or even been required to walk down stairs backwards. Thus there is evidence of the fact of an incident in the account given by Mr Steegstra to Dr Valentine but no evidence whatsoever of the circumstances of it beyond the puzzling reference to “walking backwards downstairs”. Mr Steegstra was a live-in member but there was no evidence of the restrictions that imposed on his freedom to undertake other, private, activities.
Where there is no acceptable evidence of the circumstances under which Mr Steegstra was “walking downstairs backwards”, and no evidence that Mr Steegstra did not engage in any non-service activities in the period prior to 31 October 2005, I am not prepared to infer that the incident described by Mr Steegstra and recorded by Dr Valentine must have been an occurrence that happened whilst Mr Steegstra was rendering defence service or that the injury arose out of or was attributable to, his defence service. There is simply no sufficient basis in the evidence from which the inference could be drawn.
I will then affirm the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ...........[Sgd]................................................................
  Associate
Date/s of hearing  21 December 2011
Date of decision  13 January 2012
Counsel for the applicant          Mr M X Carey
Solicitors for the applicant        Slater and Gordon
Counsel for the respondent      Mr C J Clark
Solicitor for the respondent      Australian Government Solicitor

[2012] AATA 12

13 January 2012

Key Legal Topics

Areas of Law

Military Law

Legal Concepts

Military Compensation

Service Injury

Legislative Interpretation