Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1214
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/219
VETERANS’ APPEALS DIVISION ) Re SHANE DAVID THOMAS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Dr P A Staer, MemberDate18 November 2004
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) to pay compensation to the applicant in accordance with the Act in respect of an injury described as “achillis (sic) tendonitis and plantar fasciitis left-right associated with calcaneal and forefoot varus” sustained by him in September/October 1983 but that, for the period from the end of 1985 to the present date, compensation is not payable to the applicant under either s 16 or s 19 of the Act in respect of that injury. …............(sgd S D Hotop)...................
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant served in Royal Australian Air Force (“RAAF”) from September to November 1983 – applicant sustained foot injury in course of RAAF service – applicant claimed compensation in respect of foot injury in September 2000 – in April 2001 respondent made determination accepting liability to pay compensation in respect of foot injury – in October 2001 respondent made determination that “on and from 3 October 2001” Commonwealth not liable to pay compensation to applicant in respect of foot injury – in April 2002 respondent made reviewable decision affirming October 2001 determination – applicant sustained compensable foot injury in 1983 – respondent liable to pay compensation to applicant in respect of foot injury – compensation by way of medical expenses or incapacity payments not payable to applicant for period from end of 1985 to present date – October 2001 determination a nullity – April 2002 reviewable decision a nullity – reviewable decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 4(9), s14(1), s16, s19, s 60, s 62 and s 64
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Re Liu and Comcare (2004) 79 ALD 119
Rosillo v Telstra Corporation Ltd (2003) 38 AAR 243
REASONS FOR DECISION
18 November 2004 Associate Professor S D Hotop, Deputy President
Dr P A Staer, MemberIntroduction
1. Shane David Thomas (“the applicant”) has applied to the Tribunal for review of a “reviewable decision”, dated 22 April 2002, affirming a determination, dated 9 October 2001, that “on and from 3 October 2001” the Commonwealth is not liable to pay compensation to the applicant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of a condition described as: “achillis (sic) tendonitis and plantar fasciitis left-right associated with calcaneal and forefoot varus”.
2. At the hearing the applicant appeared in person without representation, and the Military Rehabilitation and Compensation Commission (“the respondent”) was represented by Mr B Dube of counsel. The Tribunal had before it the statement and documents (“T documents”, comprising T1–T54) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and the following exhibits tendered in evidence:
·Claim for Medical Treatment, dated 11 April 1984, and Statement in Support of a Claim for Medical Treatment lodged with the Department of Veterans’ Affairs by the applicant (Exhibit A1);
·Record of Evidence of the applicant, dated 30 November 1984 (Exhibit A2);
·Discharge on Request Within Three Months of Enlistment form signed by the applicant, dated 1 November 1983 (Exhibit A3);
·letter from the Department of Veterans’ Affairs to the Department of Defence, dated 22 January 1985, regarding the applicant (Exhibit A4);
·work history of the applicant covering the period 1984-2003, dated 11 November 2003, prepared by the applicant (Exhibit A5);
·plaster cast of a right foot (Exhibit A6);
·report of Dr A Henderson, dated 6 May 2004 (Exhibit A7);
·bundle of documents (104 pp) comprising the applicant’s service records (Exhibit R1);
·report of Dr D Storer, dated 20 June 2001 (Exhibit R2);
·report of Ms S Brill, Clinical Psychologist, dated 17 August 1996 (Exhibit R3);
·report of Dr A Marsden, dated 20 August 1996 (Exhibit R4);
·report of Dr A Marsden, dated 2 July 1996 (Exhibit R5);
·report of Mr R Edibam, dated 29 May 2003 (Exhibit R6); and
·report of Dr N Cook, dated 24 March 1997 (Exhibit R7).
Oral evidence was given by the applicant, by Mr R Edibam and by Dr D Elder.
The Factual Background
3. The background facts, as found by the Tribunal on the basis of the T documents, the applicant’s service records (Exhibit R1), and other exhibits, are as follow.
4. The applicant, who was born on 7 September 1965, enlisted in the Royal Australian Air Force (“RAAF”) on 5 September 1983. His Entry Medical Examination Record indicated that he had no physical abnormalities (apart from facial acne) at that time and he was certified by the examining medical officer as “Class I”. He was posted to Edinburgh RAAF Base on 14 September 1983. (T16)
5. An Outpatient Clinical Record indicated that, on 16 September 1983, the applicant sustained a left ankle injury. It was recorded that, on 19 September 1983, the ankle was “still tender” but that the applicant wanted to “get back into marching etc”. (T4)
6. On 11 October 1983 the applicant was referred by a medical officer, Flt Lt D McGrath, to a podiatrist, Mr J Pickering, for treatment. The referral note stated:
“Mr Thomas has had foot pain with running, standing for some time plus lateral instability.
O/E Compensated Pronation forefoot varus, bilateral with plantar fasciitis.
Treat as you see fit.”
(T4, T8, Exhibit R1)
7. On 17 October 1983 Mr Pickering reported regarding the applicant as follows:
“… he has Achilles tendonitis and plantar fasciitis, left greater than right, associated with calcaneal and forefoot varus.
His symptoms should settle by wearing the special supports with medial forefoot and rearfoot corrections”.
(T4, T8, Exhibit R1)
8. A Health Statement dated 7 November 1983, signed by the applicant and co-signed by Flt Lt McGrath, contained the following description of the applicant’s feet condition and its effects:
“Structural deformity in both feet, brought out by marching and PT. Have special foot supports that are correcting this. Started approx end of September.
Have difficulty in standing stationary for periods of time, trouble walking and running in bare feet. Some pain and ankle trouble running in bare feet and with arches just trouble running”.
(T5)
9. In the meantime, the applicant had, on 1 November 1983, applied for discharge from the RAAF. The applicant had a psychological interview regarding his discharge request on 4 November 1983. A psychological report dated 18 November 1983, following the abovementioned interview, contained the following comments:
“1.ACR THOMAS enlisted as CLKSPLY/T on 05 Sep 83. His performance on course was assessed as below standard in most aspects of his training.
2.Since arriving at 1RTU (Recruit Training Unit) THOMAS has suffered from foot trouble, requiring specialist medical treatment. He has been unable to keep to course schedule in physical training, resulting in backcoursing on 2 occasions. He now faces the prospect of being on pool flight until the start of the next course some time early in 84. ACR THOMAS stated that he could not stand the thought of being on pool flight for that period, and wanted to go back to Perth over the Christmas period, then apply to re-enlist.
…”
(Exhibit R1)
10. On 21 November 1983 the applicant’s Flight Commander, Flt Sgt P W Simpson, indicated that the factors influencing the applicant’s discharge were:
1.Medical problems.
2.Unable to cope with training.
11. On 30 November 1983, the Commanding Officer of 1RTU, Wg Cdr N M Goodall, commented as follows:
“1. ACR Thomas suffers from a foot abnormality which affected his training to the point where he was twice back-coursed in week two. He has been provided with surgical inserts for his shoes and indications were that these would eventually enable him to complete his training. However, ACR Thomas has decided that rather than accept a lengthy period in pool, he will opt for discharge with a view to seeking re-enlistment at a later date. His performance under training was not of a high standard but, in fairness, his recurring medical problems contributed to this.
…”
(Exhibit R1)
12. The applicant was discharged from the RAAF, with effect from 8 November 1983.
13. In April 1984 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a Claim for Medical Treatment, dated 11 April 1984, in respect of a disability described as “feet disorder” (Exhibit A1). In a Statement in Support of that claim, the applicant referred to the relevant disability as “structural disorder of feet caused by marching”. He described the symptoms of that condition as follows:
“bone structure of feet causing extreme pain when walking, because of collapse”
and he stated that he first noticed those symptoms “while marching at RAAF Edinburgh SA”. He claimed the cost of treatment comprising 6 consultations with Mr Pickering, Podiatrist, in October 1983.
14. The applicant provided a statement, recorded on a “Record of Evidence” form dated 30 November 1984, to the DVA as follows:
“… prior to enlistment I did not suffer from any foot disability.
I first started to have trouble with my feet whilst completing a basic training course in September 1983. At that stage, I did not report the disability or seek medical treatment as the disability was only minor. I was able to carry duties (sic) assigned to me.
It was not until late October approximately that my foot disability was severe enough to prevent me carrying out my normal duties and necessitated me seeking medical attention.
In mid October I was participating in an organised run when I stepped into a pot hole and injured my right foot. I reported the injury to the medical officer. I was taken off drill duties for approximately 3 days, but was able to carry out my other duties usually assigned to me. After this injury I continued to have problems with my right foot.
Approximately 1½ weeks after the injury to my right foot, I started to have problems with my left foot. I consider this was due to the extra strain placed on my left foot due to the injury to my right foot.
From mid October until my discharge in November 1983, I was assigned to light duties as due to my foot disability I was unable to carry out my usual duties such as drill etc.
I continued to receive medical treatment from late October until my discharge.
Due to my foot disability I was unable to attend the final basic training course for 1983. My inability to attend meant I would have to wait until February 1984 to attend that particular course. From November 1983 until February 1984, I would have been placed on ‘pool-flight’ awaiting the course. ‘Pool-flight’ would have involved duties such as cleaning and guard duty. My foot disability, I was advised, may still have prevented me from attending the basic training course in February 1984.
After giving consideration to the above matters, I decided it would be preferable to request my discharge and seek employment outside the services. I felt my future in the air-force was unsure as there was no guarantee my foot disability would improve sufficiently to enable me to resume normal duties.
My foot disability has made it difficult for me to obtain employment as I cannot stand for any length of time. I recently lost my job as my foot disability prevented me from working effectively. I was working as a car cleaner”.
(Exhibit A2)
15. The applicant was referred by a DVA medical officer to Mr Stewart, Orthopaedic Surgeon, on 30 November 1984 with a provisional diagnosis of Plantar Fasciitis and Achilles Tendonitis. A brief report of Mr Stewart, dated 19 April 1985, stated, inter alia, that on examination he found “normal anatomy and feet contours” and a normal gait. (T7)
16. In May 1996 the applicant was involved in a motor vehicle accident, in non-compensable circumstances, as a result of which he suffered pain in his neck, shoulders and back, together with headaches, but which had no effect on his feet condition.
17. A “Podiatric Care Plan”, dated 25 July 2000, prepared by Ms C Mills, Podiatrist, in relation to the applicant recorded the following clinical findings:
·Primary Diagnosis: plantar fasciitis and tibialis posterior tendonitis both feet; abductor hallucis overuse, medial tibial stress syndrome and patello-femoral pain syndrome R leg/foot
·external hip positioning
·tight calf muscles
·plantar flexed 1st ray both feet
·genu recurvatum (hyperextending knees)
·tibial varum (bowing in leg)
·excessive pronation (rolling in) both feet – mid and rear foot pronation.
The recommended treatment included:
· calf muscles stretches
· stable/supportive footwear
·trial taping for 4 days to assess response of symptoms to altered foot function – possible orthotic therapy required
·query systemic influence in symptoms. (T9)
18. The applicant lodged with the DVA a Claim for Rehabilitation and Compensation form, dated 22 September 2000, in respect of “multiple foot conditions” affecting both feet. He indicated that the injury occurred in (approximately) October 1983 during drill training and added:
“gradual arch damage caused, on the whole, during and because of drill training”.
(T3)
19. On 26 April 2001 a delegate of the Military Compensation and Rehabilitation Service (“MCRS”), the predecessor of the respondent, made a determination that the Commonwealth was liable to pay compensation under the Act to the applicant in respect of “an injury arising out of, or in the course of, [his] military service namely achillis (sic) tendonitis and plantar fasciitis left-right associated with calcaneal and forefoot varus on Saturday, 1 October 1983”. (T19).
20. On 12 June 2001 Dr G O’Mahony, the applicant’s general practitioner, referred the applicant to Mr Craig Boulton, Podiatrist. (T23)
21. Dr V Signoriello issued a Workers’ Compensation FIRST Medical Certificate, dated 1 August 2001, in which he noted that Mr C Boulton, Podiatrist, had, in June 2001, identified the following relevant problems:
·plantar fasciitis
·tibialis posterior tendonitis
·medial stress syndrome
and he certified the applicant as fit for restricted work duties. (T31)
22. A report of Mr Craig Boulton, Podiatrist, to the MCRS, dated 27 August 2001, stated as follows:
“I have recently fitted Shane with functional orthoses to correct his foot function which has led to multiple foot injuries.
He has been wearing the orthotics for approximately 6 weeks now – with a noticeable improvement, however I feel that we are limited with this improvement by his badly worn joggers. He needs a more stable, supportive pair of shoes to hold the orthotic and offer his feet some degree of comfort.
…”
(T37)
23. A report of Mr Craig Boulton, Podiatrist, to Dr G O’Mahony, dated 3 September 2001, stated as follows:
“Thank you for your referral of Shane Thomas who I have been treating under the MCRS scheme since 13th June, 2001.
I have noted significant biomechanical problems in Shane’s gait which have been amplified by the apparent hypersensitivity of his peripheral nerves. Based on this, I have made it clear to Shane that any treatment that I can offer him will probably only ‘reduce’ symptoms.
I have fitted him with fully casted orthotics which he has now been wearing for approximately one moth. We have noted significant improvement, particularly in the right foot, however there is still some discomfort in the ankle.
The left leg has been harder to control, Shane still reports a sore hip, knee (under patella) and forefoot pain (which I have attributed to a neuroma).
I will continue to encourage Shane to wear the orthotics and modify them when necessary. I am also considering the benefits of ultra sound therapy. I will notify you of any significant changes.
…”
(T38)
24. At the request of the MCRS, the applicant attended Dr D Elder, Consultant Occupational Physician, for a medical examination on 25 September 2001. Dr Elder subsequently prepared a report, dated 3 October 2001, as follows:
“…
HISTORY:
Mr Thomas rang me prior to his consultation to advise that he was running approximately 15-20 minutes late. He therefore turned up at a quarter to the hour, instead of half past.
Notably, he thanked me both at the start of the consultation for waiting back for him as he was my last patient of the day and also at the end of the consultation, shook my hand and once more thanked me for waiting back for him. I consider that this is important to state, because I found Mr Thomas a very evasive and defensive historian and indeed, there were times during the consultation with him that I considered he was being deliberately misleading with me.
Occupation/Work Duties:
His occupational history was one of the areas in which I had difficulty in elucidating a chronological order.
Mr Thomas stated to me that he entered the RAAF in September 1983 and was given the option of an honourable discharge in November 1983. He did not seek, nor was given, medical retirement.
After leaving the RAAF, he worked in car sales (on and off) for approximately five weeks. He then worked in hospitality for approximately 4-5 years (on and off), before changing again to retail sales in a shop (again on and off). He was working full-time in 1996 when he was involved in a road traffic accident.
Initially, Mr Thomas stated that as a result of the motor vehicle accident, he was off work for nine months, but during the history-taking, this timeframe was somewhat confused and he clarified himself, saying he did a three month project for Nintendo at the end of 1998.
Subsequently, he commenced full-time work at [a games retail shop] but resigned shortly thereafter, apparently as his employer did not give him award pay and Mr Thomas alleged that they were ‘screwing’ him.
In 2000, he travelled to visit friends in Canberra, undertaking some part-time bar work and working on the gaming floor. He told me that at the end of 2000, he worked in the Christmas period at David Jones in sales.
He stated that he has been unemployed since that time.
Mechanism of Alleged Injury/Sequence of Events:
Mr Thomas reported that after joining the RAAF, he was on a training run and doing drill in October 1983, when he developed pain in his foot.
Subsequently, he was apparently advised by a podiatrist that his right arch had collapsed and he was given a right orthotic for his shoe.
He stated that his left foot also showed similar symptoms.
He was discharged from the RAAF in November 1983. Mr Thomas alleged that he was hoodwinked into an honourable discharge, rather than a medical discharge.
He stated that after his discharge, he had a few treatments at Monash Hospital and intermittently, over the next 18 years, had contact with the Department of Veterans’ Affairs who always denied his claim.
Subsequent Progress/Specialist Management:
According to Mr Thomas, since that time, he has experienced increasing pain through his feet. Last year, he made a claim through the MCRS and his claim was accepted. He was therefore provided with orthotics and has seen a podiatrist for adjustment of them regularly since that time.
He stated to me that between 1983 and 2000, he did not seek any treatment at all, as he allegedly could not afford it.
I attempted to go into detail as to what had caused him to be off work in 1996. He told me that he was involved in a road traffic accident in May 1996, in which his vehicle was rear-ended. He estimated that the other car was travelling at approximately 60kph. He stated that he received no treatment that day and no ambulance was called.
He saw his general practitioner the next day and X-rays were carried out. These apparently showed no abnormality. Physiotherapy was instituted for three months, until the claim was rejected, however Mr Thomas appealed this and the case was eventually finalised, with a payout at the end of 1998.
It must be said that Mr Thomas gave the above history in a very reluctant manner. I repeatedly asked him whether he had sustained any other injuries and he stated that he had not. It was only when I pointed out to him that I actually had a copy of his application for disability support pension and the form that he filled out which listed all these various injuries and indeed it would seem that he had been assessed as having significant disability in all these areas, that he reluctantly then discussed them.
The history that he then gave, essentially completely contradicted the history that he had given in the claim form, which he had filled out and signed.
At first he alleged that the only area which gave him difficulty was his bilateral foot pain. However, when I actually examined the checklist that he carried out, it was obvious that he, at that time, alleged significant low back and neck pain and indeed, if one counts up the references to neck disability, these far outweigh any disability due to his feet.
It was at this point in time, that in order to proceed with the consultation, I pointed out to Mr Thomas that I did not consider he was being entirely truthful with me.
Current Status:
He alleged that his current complaints include bilateral foot pain, bilateral ankle pain, bilateral knee pain, bilateral hip pain, neck pain, headaches, low back pain. He alleged that his various tolerances allow that he can only sit for approximately a few minutes at a time and that he can only stand for between 3-5 minutes at a time. He stated that he is only able to take two steps with no discomfort and can only walk between 2-500 metres with significant discomfort.
I therefore asked him, in view of these very restricted tolerances, in which position he spends most of the day. He admitted that his (sic) spends most of the day alternating his position.
Current Work Status:
I enquired as to his present work status and it was only at this point in time that he admitted that he had been accepted for the disability support pension and indeed, he had appealed for it to be backdated from February 2000 (from when it was accepted) to the time of his neck injury in 1996.
Present Activities:
In regard to his present activities of daily living, he stated that he has not stopped any of these. He does not have a car at the moment and so therefore, does not drive. He stated that various household chores allegedly cause him pain. He lives alone and therefore does still carry out all of his household chores.
I asked him to describe a typical day and he alleged that he has breakfast first thing in the morning and then watches television four out of seven days. He does nothing else in these four days. He reported that on the other days he spends time with his daughter, picking her up and perhaps taking her bowling. He stated that he does not bowl. He does this during his access visits as he is separated from his wife.
Present Treatment:
His present treatment consists of Panadeine Forte and Brufen on an ‘as required’ basis. He has orthotics and is apparently trying to get chiropractic treatment accepted for his hips and knees.
Past Medical History:
Again, this was part of the consultation in which I had difficulty obtaining a chronological sequence and essentially had to refer to the claim form and then point things out to Mr Thomas, to elicit any history from him.
There is no family history of note.
Personal/Social History:
Mr Thomas is separated from his wife and lives alone in rented accommodation. He has an 8½ year old daughter. He has received the disability support pension and this has been backdated to February 2000 (it came through in August 2000).
He is a non-smoker of tobacco. He does not do any fitness activities.
PHYSICAL EXAMINATION:
On examination, as stated, I found him to be a very evasive historian and there were times that I felt he was being deliberately misleading.
During my examination of Mr Thomas, there was significant abnormal illness behaviour throughout his presentation.
Height was 176cm and weight was 85kg.
Notably, he walked with no limp at all, either in his shoes or in his bare feet. During my consultation with him, when I asked him to carry out various activities, he would grimace and huff and puff.
Head/Neck:
Examination of his head revealed a decreased range of movement on all planes, to approximately half normal range.
Upper Limbs/Shoulder Girdles:
Examination of his upper limbs did not reveal any abnormality from a physiological point of view, but there were non-physiological findings in that the muscle power was diminished in all groups in his left arm and significantly, his grip strength was only 20kg bilaterally. There was no physiological reason for this.
Back/Spine:
Examination of his back and spine revealed Waddell’s signs of non-organic overlay present (3/5). He was positive to axial compression. His range of movement was totally inconsistent and there was abnormal illness behaviour and exaggerated hyper-reactivity.
His range of movement in the standing position was 40º, but in the seated position, with his legs outstretched, he obtained 90º easily.
Lower Limbs:
There was no evidence of muscle wasting in his lower limbs. He was hyper-reactive to light tough (sic) throughout his lower limbs.
Straight leg raise was inconsistent. Muscle power was diminished bilaterally in all muscle groups, in a non-physiological pattern. Sensation and deep tendon reflexes objectively were normal.
He stated that he could not walk on his heels, walk on his toes, or squat.
Examination of his feet did not actually reveal any evidence of pes planus and I do not accept that he has collapsed arches. He had a normal strike pattern in his feet and he had significant callus formation that belies his suggestion that he is essentially sedentary for four out of the seven days of the week.
SUMMARY AND ASSESSMENT:
I consider that Mr Thomas’ presentation was one of misleading me and deliberate exaggeration.
I would suggest that his presentation during his Centrelink application for his Disability Support Pension was grossly exaggerated towards the alleged injuries in his neck and back and yet, when he presented for a claim for compensation with regard to his feet, these injuries were initially totally ignored.
In response to specific questions raised in your letter dated 10 September 2001:
1.From what condition(s) does the employee currently suffer as a result of his military service as opposed to the contribution of his post discharge employment and activities?
I could find no specific condition that Mr Thomas is currently suffering as a result of his military service. I found no specific evidence of pes planus today and indeed, objectively, his feet and walking pattern, by examining the soles of his feet, appeared entirely normal.
His examination presentation was full of inconsistency and exaggeration.
2.a) Were the effects of the military employment contribution of a temporary nature or permanent nature and, if temporary, when did the effects cease to exist.
I would suggest that the effects of his military employment were of a temporary nature and the effects ceased to exist many, many years ago.
b)Please advise the extent of the post discharge employment/activities contribution to Mr Thomas’s current conditions.
I consider that his presentation to gain the disability support pension is entirely due to his post-discharge employment and activities and has nothing at all to do with the alleged foot injury occurring within a period of two months, approximately 17-18 years ago.
3.Is the employee totally incapacitated for work?
I refute the suggestion that Mr Thomas is totally incapacitated for work. I cannot understand, on his presentation today, why he has been accepted for a disability support pension.
4.If your answer to Question 3 is ‘yes’, has any military employment related disability contributed materially to such total incapacity?
This question is not applicable.
5.If so, is the total incapacity likely to continue indefinitely?
This question is not applicable.
6.If your answer to Question 3 is ‘no’, is the employee partially incapacitated for work, ie unable to perform in the Air Force (only served two months – still in recruit training – potential mustering unknown) but able to perform other work, and has any military employment related disability contributed materially to such partial incapacity?
I consider that Mr Thomas has full employment capability. I base this partly on his occupational history. It is of note that Mr Thomas, who alleges significant disability from his feet, then chose to work for very many years in occupations such as bar work and retail sales, which would require him to be on his feet for most of the day.
One would assume, that if an individual did have genuine pathology in the feet, he/she would try to gain employment in predominantly seated occupations. The fact that Mr Thomas continued to seek employment which would require standing and walking work, I consider, leads one to a conclusion that there was no significant disability.
7.If the employee is partially incapacitated for work, what types of work is he able to perform (if possible indicate any restrictions in terms of number of hours the claimant is able to work)?
It is my opinion that Mr Thomas is not partially incapacitated for work.
8.What treatment, if any, is indicated?
I do not accept that any treatment is indicated and certainly, even if it is, it is not related to his military service.
9.If incapacitated for employment, please give your opinion as to the likely duration of the incapacity and where appropriate, advise of a date when he would need to be reviewed.
This question is not applicable.
With regard to your statement that MCRS intends to refer him for vocational rehabilitation services, I do not consider that this is appropriate. I consider that Mr Thomas is capable of working in a full-time capacity and it is my opinion that you do not have any liability in regard to his ongoing unemployment.
The contents of this report are true to the best of my knowledge and belief.
…”
(T42)
25. On 9 October 2001 a delegate of the MCRS made a determination that, “on and from 3 October 2001”, the Commonwealth was not liable to pay compensation under the Act to the applicant in respect of “achillis (sic) tendonitis and plantar fasciitis left-right associated with calcaneal and forefoot varus”. (T44)
26. By letter dated 17 November 2001 the applicant requested a reconsideration of the abovementioned determination. In his letter the applicant stated:
“…
Please note the glaring difference in Dr Elder’s report and the facts as they stand. Most importantly he states that my injury would have been short lived after my service even though two podiatrist reports (enc) which are 17 years apart show similar findings, though Dr Elder refused a copy of the latter stating it was ‘too old’. (Dated 25 July 2000). I will respond more fully to Dr Elder’s report in time; I will mention however, in part, that I found his manner overbearing, his questioning to be inexplicit, and his objectivity lacking. He seemed to have a predilection towards my upper back and neck injuries and paid little attention to my feet/legs. One further peculiarity is his finding of ‘no specific evidence of pes planus’, as this condition, aka flat feet, may not be painful and has never been the condition diagnosed nor claimed for.
Please note, also, that this claim relates not only to the injuries which occurred in my short time with the RAAF but also to the duty of care after my discharge and the worsening of my condition(s) over time.
…”
(T45)
27. The applicant sent a letter, dated 6 February 2002, to the MCRS enclosing a report of Ms Claire Mills, Podiatrist, dated 3 December 2001, and commenting further on Dr Elder’s report as follows:
“I mentioned that I would respond to Dr Elder’s report more fully in time but as of this point in time I shall follow a different course in relation to that matter. I will allow the evidence of my actual condition(s) to argue his points. I will state, however that in his examination of my walking pattern I took three steps away from him and three steps toward him. How this allows for any determination of my gait, etc, is beyond me and has puzzled my podiatrist and GP.”
(T49) Ms Mills’ report of 3 December 2001 stated as follows:
“Mr Thomas was sent at The Foot Clinic on the 25th of July 2000 for an initial foot function assessment. Following is an account of his presenting symptoms, assessment results and proposed treatment regime at that time.
Relevant Medical History
Mr Thomas reported a history of minor sprains of both ankles, with a significant left ankle sprain approximately 16 years earlier, treated with strapping and rest by airforce medical personnel. Mr Thomas reported suffering a lower back injury when falling off a horse in 1987. Mr Thomas reported he was involved in a motor vehicle accident in 1995 (sic) in which he suffered a neck injury, causing ongoing pain, which has previously undergone physiotherapy.
Mr Thomas reports that he was voluntarily discharged from the RAAF in 1984 (sic) for ‘arch collapse’ and underwent some initial treatment under Veterans’ Affairs.
Presenting Symptoms
Mr Thomas presented reporting the following symptoms:
1.Pain present since 1984 in both feet, right worse than left, and gradually becoming worse since onset. The pain is present primarily when weight bearing and became more severe the longer he spent weight bearing. This pain is present primarily in the heel, but also in the arch of both feet. When most severe there is also a sharp pain in the right midfoot and just back from the ball of the left foot.
2.Shin pain in the right leg present for at least 4 years, gradually increasing in occurrence and intensity since onset. The pain increases with increased weight bearing activity, eases with rest and is a constant sharp pain when present.
3.Right hip pain present after prolonged walking and becoming more frequent and severe since its onset approximately 2 years earlier. The pain being present deep in the hip.
4.Right knee pain located behind the kneecap occurring with extended walking, but less frequently than the hip. This pain also occurs while going up and down stairs and is a sharp pain that eases to a throb on rest.
On Examination
On examination Mr Thomas reported pain during the following:
1. Palpation of the tendon and distal portion of the muscle belly of tibialis posterior bilaterally.
2. Palpation of both plantar fascia, especially the right at the insertion of the plantar fascia to the medial calcaneal tubercle. Tenderness was reported on palpation over the entire plantar fascia in both feet.
3. Palpation of abductor hallucis muscle belly in the right foot.
4. Bilateral achilles tendon tenderness on palpation.
5. Pain on external rotation of the right hip.
The following measurements obtained during Mr Thomas’ initial foot function
assessment were not within the podiatric criteria for normal:
1. Tight calf musculature (gatrocnemius) both legs.
2. Bilateral genu recurvatum.
3. Bilateral semi-rigid plantarflexed first rays.
4. Bilateral tibial varum.
5. Excessive pronation, midtarsal and subtalar joints, both feet.
Conclusions
As a result of the information acquired from Mr Thomas and the findings of this initial consultation, the following initial diagnoses were made:
1. Bilateral plantar fasciitis.
2. Abductor hallucis muscle overuse in the right foot.
3. Bilateral tibialis posterior tendonitis.
4. Flexor digitorum longus overuse.
5. Right patello-femoral pain syndrome.
Due to the extensive range of structures involved it was queried whether there was any systemic involvement in Mr Thomas’ condition.
Treatment Regime
At the time of this initial assessment we taped Mr Thomas’ feet to assess the response of his symptoms to altered foot function. Mr Thomas was taped for a period of 4 days. Mr Thomas was reviewed on the 3rd of August 2000, at which time he reported that while the tape was on he experienced a general decrease in the severity of all his symptoms. He reported that the arch and forefoot pain had decreased the most significantly during the taping period. Mr Thomas commented that once the tape was removed his symptoms returned to the pre-tape level quite rapidly.
In response to the positive taping sessions the following treatment regime was proposed:
1. Stable supportive footwear to accommodate orthotic devices.
2. Stretching regime.
3. Prescription orthotic devices to stabilise and support foot function.
4.Referral to physiotherapist for assessment and establishment of home exercise programme.
5.Possible osteopath assessment if required after the establishment of the above.
Mr Thomas has not been reviewed since August 2000, however he reports that since moving to Western Australia, he has sought podiatric treatment.
…”
(T48)
28. On 14 February 2002 an officer of the MCRS sent a letter to Dr D Elder, enclosing a copy of the applicant’s abovementioned letters and enclosures, and requesting his response. By letter dated 28 February 2002 Dr Elder responded as follows:
“Thank you for your letter dated 14 February 2002 requesting that I examine Mr Thomas’ submissions, together with all attachments.
I can confirm that I read the following documentation:
1. Letter dated 6 February 2002 from Mr Thomas.
2. Report dated 3 December 2001 from Claire Mills, Podiatrist.
3. Report dated 17 November 2001 from Mr Thomas.
4. Photocopied pages of Outpatient Clinical Records (four in total).
5. Podiatric Care Plan dated 25 July 2000.
6. Letter dated 3 September 2001 from Craig Boulton, Podiatrist.
I am not surprised that Mr Thomas disagrees with my opinion, nor am I surprised that he offers complaints about me.
As you will note in my report (page 2 under History) I considered it important enough to state that I found Mr Thomas a very evasive and defensive historian and indeed there were times during the consultation with him that I considered he was being deliberately misleading with me. I wished to record that he thanked me, both at the start of the consultation and at the end of the consultation, shaking my hand at both times. This would seem to contradict his accusations (in his letter dated 17 November 2001) that he found my manner overbearing, my questioning to be inexplicit and my objectivity lacking. I question that if this was his reaction at the time of my consultation, rather than when he has received either a copy of my report or the results of my report, then why would he have thanked me, shaken my hand and appeared happy with the consultation.
Mr Thomas makes great play of the fact that I excluded pes planus and states that this has never been a condition diagnosed, nor claimed for. I refer you again to my report (page 2 and 3) in which I state that Mr Thomas told me that his right arch had collapsed and his left foot had also showed similar symptoms. He also alleges that I did not take account of the plantar fasciitis that he suffered while he was in the Forces. The conservative treatment that he was given whilst in the Forces is effective in 95% of cases. However, the nature of this disease is that the natural history, even with conservative treatment, is that it runs its course for up to one year. Even if Mr Thomas did suffer this condition whilst in the Forces, it is my contention that he could not be suffering the same condition more than a decade later and indeed his allegation that he has suffered continual symptomatology is contradicted again (and I have made a point of this in my report to you), based on his occupational history. I again repeat that it is of note that Mr Thomas, who alleges significant disability from his feet, chose to work for very many years in occupations such as bar work and retail sales that would require him to be on his feet for most of the day. This, in my view, leads one to the conclusion that there was no significant disability, as alleged.
I am aware of all of the other symptomatology that he alleges (as noted in the podiatry report dated 3 December 2001), ie shin pain in the right leg, present for four years; right hip pain, present for approximately two years; right knee pain, length of time not noted. I do not believe that any of these conditions can be related to his service, having been discharged from the RAAF in November 1983. I again note that Mr Thomas was honourably discharged, rather than receiving a medical discharge which, in my view, again refutes his allegations.
In regard to his allegation that, when examining his gait, I only watched him walk three steps away from me and three steps towards me, the set up of the rooms in Perth is that the waiting room is at the end of a long corridor, off which are located each of the consultation rooms. It is my usual practice to walk to the waiting room, call the patient’s name and then escort the patient to the consultation room. This is not only done for politeness but it also allows me to view the person’s gait. I can confirm that I did so in Mr Thomas’ case, as with every single other patient whom I see.
I have no cause to change the opinions stated in my original report to you.
…”
(T51)
29. On 22 April 2002 a delegate of the MCRS made a “reviewable decision” affirming the abovementioned determination of 9 October 2001. (T52)
30. On 21 June 2002 the applicant lodged with the Tribunal an application for review of the “reviewable decision” of 22 April 2002. (T1)
The Applicant’s Evidence
31. The applicant, in his oral evidence-in-chief, described the circumstances of his foot injury and its immediate aftermath as follows:
“…In 1983 – September 1983, I enlisted with the Royal Australian Air Force and whilst taking part in a run, it actually was – I think I made the statement that my injury occurred in October but the actual injury to my left foot was on a run on 16 September ’83. I had an injury to the left ankle and that was strapped and I was still doing drill back on 19 September, even though I still had some injury and stuff. As I had already fallen back two flights due to influenza and another matter, that I really didn’t want to miss any more time on flight, so I was keen to get back involved. It turned out that by 11 October, I was getting a lot of pain in my right ankle and heel and also some pain also in the left-hand side. On 17 October, I was diagnosed with plantar fasciitis and compensated forefoot varus, or something along those lines. The upshot of that is that I was moulded an orthotic for my right foot only and that was placed inside my boot while I continued to do some training. However, unfortunately, due to the fact that there was some time between those two events, I was required to wear thongs and not to wear my boots and this probably exacerbated the problem more than anything. When I reached the end of the flight, that was the last flight for the year, the last pool flight for the year, so there was to be a 3-month hiatus between the last pool flight and the first pool flight of ’84. It was presented to me that maybe I should consider getting an honourable discharge from the Air Force, receiving further treatment in ‘Civi Street’ and then re-enlisting for the 1984 period. As I was barely 18 and missing everybody back home, I decided - and Christmas was due, I decided rather than sitting in pool flight for 3 months without a guarantee of being on the first flight, I would take the offer of honourable discharge and receive medical treatment in ‘Civi Street’ ie through Vet Affairs, and I thought that I would re-enlist. However it turns out that wasn’t quite the case once I had discharged. The treatment was not ongoing, I had I think, two or three examinations at Hollywood Hospital and nothing was actually done. There were no new orthotics made or any requests made on me for treatment and then that just simply ceased, and that was the end of that. Had I realised the seriousness of these injuries and what they would lead to, I probably would have been a lot more active in doing something about it. In 1984, I also started work at City Motors, a car yard, and I was car cleaning and detailing with a view to becoming a car salesman. A couple of weeks into the job, however, I found when my sneakers – my canvas sneakers were getting wet, that my right foot was swelling a lot and causing me pain. I had to give that job away. That was my first job since leaving the Air Force, and that actually put a big dent in me and I had a lot of depression and gambling problems come in that period and that was pretty much it until ’88 when I applied for a bar course through the Centrelink Agency at the time, because I wished to go back to school and try and do my year 11 and 12 and I kept seeing jobs for casual positions in bars on the work-boards back in the CES in the old days when they had work-boards. And I thought, well maybe that would be a good way to earn a few dollars while I am trying to get on with my education. I did the training course that was sponsored via the CES and I started to notice when I was doing the work, that I was having more aggravation with my feet but I just assumed that it was normal. It was the same sort of – because everybody complained of sore feet within the hospitality industry. But I didn’t realise that it was just sort of aching from being standing on it, not actually pain shooting up through the back of my legs, so I continued to do that work casually. While I was on holiday, my car was stolen and that put a big problem in my continuing my studies, so that ceased and then I did some travelling. Basically, hospitality was my work before joining the Air Force, so I knew it was something I could fall back on, what with having a poor education, hospitality and retail are pretty much your main stay jobs. And so that’s what I worked in because I was used to dealing with people….”
(Transcript, pp16 - 17)
32. The applicant confirmed that he lodged a claim for medical treatment in respect of his feet with the DVA in 1984 (Exhibit A1) but that it was refused on the ground that he was not a “veteran”. He added that he lodged with the DVA a further claim in 1988 and in 1995 but they were also refused on the same ground. He said, however, that he was informed about the MCRS by a friend in 2000 and he subsequently lodged a claim for compensation with the MCRS, and the MCRS accepted liability in 2001. He said that, during the period in which the MCRS accepted liability, he received compensation by way of medical expenses, but not incapacity payments.
33. The applicant referred to the Record of Evidence, dated 30 November 1984, which he provided to the DVA in connection with his 1984 claim (Exhibit A2 – see paragraph 14 above). He said that he wished to amend that statement because the references to the right foot and left foot in that statement were incorrect and should be reversed. He explained:
“…I guess really the only thing I really want to amend on that is it sort of stating that …after the injury to my right foot, I started to have problems with my left foot. It was actually the other way around obviously because the injury – the initial injury was the twisting of the ankle on the left foot from stepping in a pot-hole and it was putting the extra strain on my right foot. It was a little ambiguous at the time … just because of the way the injury worked out, that the actual injury created another injury, if you like.
So it was the left foot first, you say?--- The left foot was twisted in a pot-hole on a training run and then the right foot started to get problems in the few weeks after that because, I guess, putting the extra weight on the right foot or something…”
(Transcript, pp21-22)
34. The applicant tendered in evidence a document setting out his “work history” from 1984 to 2003 which may be summarised as follows:
·1984 – worked for 3 weeks as a car cleaner and detailer at a large car dealership;
·1985 – trained as a mail sorter with Australia Post but did not complete training;
·1987 – casual book-keeping;
·1988 – worked for 3 weeks on a tulip farm planting, sorting etc; completed a hospitality course in August/September and in October commenced work at a large hotel as “banquets barman” on a casual basis;
·1989 – continued abovementioned hotel casual work until February; worked in a fast food bar for 2 weeks and in a delicatessen for 5 weeks;
·1990 – worked on a casual basis at a reception centre “sporadically” for 7-8 months, mainly on weekends;
·1991 – casual work at a restaurant for 2 months;
·1992 – worked as a “Shift Manager” at a billiards hall for 2 months, and at an amusement arcade for 4-5 months;
·1995 – worked at a pawnbroking shop for 4-5 weeks;
·1996–97 – worked at another pawnbroking shop from January to May (car accident), and then did promotional work on a contract basis from October to February;
·1998 – worked at a games shop for 4 months and at an electronics shop for 3 weeks;
·1999 – worked as a call centre operator for 4 weeks;
·2000 – casual work as a barman/floorman at a football club for 1-2 months, and casual retail work at a large department store for 1-2 months in the pre-Christmas period;
·2002–2003 – worked as a “trivia night” host at a hotel 1 night per week.
(Exhibit A5)
35. As regards his present symptoms, the applicant said that he continues to suffer daily pain in both feet, especially at the front of the heel of each foot and slightly in front of the ball of each foot near the toe joints. He said that the pain is “more prominent” in the right foot. He said that he continues to have difficulty standing and walking, and that running is “out of the question”.
36. The applicant also tendered in evidence a plaster cast (Exhibit A6) which he said was a cast of his right foot which had been made by Mr Craig Boulton, Podiatrist, for the purpose of making orthotics. He added that a cast of his left foot had also been made by Mr Boulton for the same purpose. He agreed with the Tribunal’s observation that the cast shows that the front of the foot is “rotated slightly outwards” such that the big toe and the ball of the foot are not resting on the floor, and the “angle of the forefoot is approximately 15 degrees” from the floor (horizontal). He said that, since the orthotics have been in place, the level of pain has diminished by approximately 30%.
37. In cross-examination, the applicant said that, since his discharge from the RAAF in November 1983, the level of pain in his feet has been “like a sliding scale” commencing as “just uncomfortable”, then progressing into “annoying”, and later into “painful”. He said that the period 1995-1999 was “probably the worst period” in that he “noticed more pain and…had more difficulties” in that period because he did not have a driver’s licence then and had to use public transport, and was on his feet, a lot more during that period than before.
38. As regards his work history, he described it as “a very, very patchy and poor work history”. He said that none of the jobs in the hospitality industry had been full time and that each involved shift work of about 4 hours per day, 3-4 times per week. In relation to sport, he said that he was an active soccer player before he joined the RAAF but that he has been unable to play since then because of his feet problems. He said that he has been 10-pin bowling a few times since then and has played golf, on average, 4 times per year. He added, however, that he either played only 9 holes, or used an electric cart to play 18 holes, of golf.
39. The applicant was referred to a letter from his general practitioner, Dr D Storer, dated 20 June 2001. He acknowledged that that letter indicated that, in the period 1991-2000, he had attended Dr Storer’s medical practice in relation to foot problems on only 2 occasions, namely, on 28 February 1995 when he was seen by Dr O’Mahony regarding ‘right plantar fasciitis”, and on 14 May 1999 when he was seen by Dr Storer, on referral by Mr S Bond, Podiatrist, regarding “broken feet arches (possibly in airforce)”. Dr Storer’s letter was tendered in evidence by the respondent (Exhibit R2).
40. The applicant was also referred to 2 reports prepared by Dr Andrew Marsden, Specialist in Occupational Medicine, for the State Government Insurance Commission in connection with a personal injury claim following his motor vehicle accident in May 1996 (referred to in paragraph 16 above). In a report dated 2 July 1996, Dr Marsden, when setting out the applicant’s history, stated (inter alia):
“He was playing golf regularly but ceased after the accident and two weeks prior to the accident he started jet skiing but he has not undertaken this activity since. He said that now he just about manages to play cards.”
The applicant commented that he could not recall telling Dr Marsden how often he was playing golf at that time. He said that if he was playing once every 3 months, that would be playing “regularly”, and he did not concede that he was playing golf more frequently than that prior to the motor vehicle accident. As regards jet skiing, the applicant said that he had then only just commenced to do that and had only tried it once but that, in any event, it involved his kneeling and putting his weight on his knees and did not affect his feet. Dr Marsden’s report of 2 July 1996 was tendered in evidence by the respondent (Exhibit R5).
41. Dr Marsden’s other report, dated 20 August 1996, referred to a surveillance videotape taken of the applicant on 11 June, 3 July and 20 July 1996. In that report Dr Marsden commented (inter alia) that, in the videotape, the applicant “is shown walking normally and briskly on several occasions…”. The applicant said that he was aware that video surveillance had been carried out on him in 1996 but that he had never seen a copy of the videotape, and that he was accordingly unable to respond to Dr Marsden’s comments about the manner in which he was walking, as shown on that videotape. His evidence continued:
“In your view, do you think in that period of time you were walking normally? --- I probably appear to. I don’t really walk with a limp or a gait even when I am in pain, I prefer to sit down because I don’t – it is a wolf thing. If you know anything about wild wolves they don’t show their injuries because then they are an easy target. It is a bit like to be a man, we don’t tend to exaggerate our pain, we try to under-rate it, so I probably did appear to be walking fairly normally. But I will just remind you that I actually have pain in both feet, so I actually wouldn’t favour one foot over another particularly.
What about briskly? --- Yes, well I am pretty – that is why I would like to see the film, to see what his version of briskly is.
Do you not agree or ---? Do I not agree that I would be walking briskly, correct. I do not agree that I would be walking particularly briskly. …Unless I was running late to pick my daughter up from day care in which case I may have tried to put on a burst of speed.”
(Transcript, p 56) Dr Marsden’s report of 20 August 1996 was also tendered in evidence by the respondent (Exhibit R4).
42. The applicant was also questioned about his examination by Dr David Elder and Dr Elder’s subsequent reports of 3 October 2001 and 28 February 2002 (T42 – set out in paragraph 24 above, and T51 – set out in paragraph 28 above, respectively). He said that he disagreed “entirely” with Dr Elder’s account (in his report of 28 February 2002) of his walking down a corridor to Dr Elder’s consultation room (during which Dr Elder said that he had observed his gait). He said that Dr Elder’s room was “next to the reception desk” and that, when he arrived (late), the receptionist had directed him to go “straight in” as the doctor was waiting for him. He also said that Dr Elder would not have seen him prior to his entering the consultation room “unless his curtains were open” and that “his curtains were not open when [he] went into his room”. He described that consultation as “a very hostile situation”. He later added:
“… I just found it to be a very aggressive interview. I didn’t feel he was being objective at all. He got me to walk like three steps away and toward him without my orthotics and he based my whole walking gait and condition on that and to me that seemed like a very perfunctory sort of examination. All his questions were based around my back injury and things like that. He had very little interest in my actual injury and the condition of my feet. Very little of his questioning went down that path and most of it was just about my back, my back, my back, and, yes, I found it very hard to answer a lot of his questions because he wasn’t specific with his questioning. In one instance he said: do you have any other injuries? And we were talking about my feet, at that point, and I said: no. And then he said that I was a liar because I had the horse-riding thing and it is like, well, yes, but I thought we were here talking about my feet. So things like that made me look like I was being ambiguous but, in fact, I just couldn’t answer his questions because they weren’t specific. And it was quite a hostile appointment. That is all.”
(Transcript, pp 63-64)
43. In response to questions from the Tribunal, the applicant reiterated that he had had “no problems” with his feet prior to joining the RAAF, despite the fact that he played cricket and competitive soccer at school and did retail work immediately after leaving school which required him to be “on [his] feet a lot”. As regards the plaster cast of his right foot (Exhibit A6), he said that, “from memory”, that cast was taken while he was in a sitting position but that his feet were “on something solid” although they were not fully weight-bearing at the time. He said that the rotation in his feet affected his gait and that he “couldn’t walk in a straight line” before he was fitted with orthotics. Finally, he confirmed that he was wearing the orthotics when he saw both Dr Elder and Dr Edibam.
The Evidence of the Medical Witnesses
Mr R Edibam
44. Mr Edibam confirmed that he is a specialist orthopaedic surgeon and that he had prepared a report, dated 29 May 2003, in relation to the applicant. The contents of that report, which was addressed to the applicant’s (then) solicitors, were verified by Mr Edibam and are as follows:
“…
History
Mr Shane David Thomas was 39 years old and had completed year 10 High School and subsequently had worked as a general hand in a shopping centre and he then joined the Royal Australian Air Force in September 1983, the exact date being the 5th September 1983.
He had been honourably discharged on the 28th November 1983.
Mr Thomas had served for a less than a period of three months. He enlisted in the Air Force and was training to become a Supply Clerk and he was at that time 18 years old.
His main complaints were pain in both his feet, also felt on the lateral side of his ankles and behind the heels and up the heel cord. The pain in his foot was felt under the medial arch on the dorsum of the foot under the first metatarso-phalangeal joint of the big toes and under the metatarsal heads of the rest of the metatarsals.
In addition to that he mentioned that he was experiencing pain in both his knees and in the left hip, which he claims came on at a much later date as a result of his awkward gait.
Mr Thomas informed me that these symptoms occurred after he had an injury to one of his ankles, he could not remember whether it was the left or right but he was fairly sure it was his left ankle that was injured. That occurred when he was running at a training session when he stepped into a pot hole.
He was unable to tell me as to whether any investigations were undertaken at the time such as x-rays, however he informed me that the ankle was strapped and he continued with his training and over a period of time he started to experience pain in his right foot.
Mr Thomas was referred to a Podiatrist who suggested that he should wear an orthosis and whilst he was waiting for the orthosis to be supplied he wore thongs and undertook his normal training activities such as drill etc. As a result of wearing thongs he claims that he developed similar symptoms in the left foot.
Mr Thomas applied for an honourable discharge from the Royal Australian Air Force and obtained one. He said he did receive some treatment at Hollywood Hospital later on.
Approximately six years later Mr Thomas saw another Podiatrist who advised him to have proper orthosis as he felt that the orthosis that had been supplied to him were inappropriate.
Throughout this period no investigations had been carried out.
Mr Thomas is unable to recollect as to whether he saw any doctor at that time, although later on he saw Dr O’Mahoney and informed him of the problem with his feet.
Subsequently Mr Thomas has changed his doctor and now sees Dr Storer.
As his symptoms continued Mr Thomas consulted another Podiatrist in 1999 who again advised him to wear orthosis and ultimately after some months he was provided with a proper pair of orthosis eighteen months ago.
Since then Mr Thomas said the orthosis do help, but do not relieve the symptoms in his feet completely.
In addition Mr Thomas stated that he takes Tramal tablets occasionally.
Over a period of time and because of his altered gait Mr Thomas claims that he developed pain in his left hip and both knees, which occurs because he walks awkwardly.
As to his work activity, Mr Thomas gave me to understand that since leaving the Air Force he had worked as a Trainee Car Salesman but had to give that up because of the pain in his feet, resulting in standing for prolonged periods of time.
For two years Mr Thomas was unemployed then he worked in the Hospitality Industry and in the Retail Industry. Subsequently he went back to school to complete his schooling but again failed to do so and states that this resulted from his car being stolen, following which he worked in a lunch bar and at a Pawn Broker shop.
Mr Thomas has worked on a casual basis, he is a Master of Ceremonies but apart from that he has remained on unemployment benefit for the majority of the time.
Past History
Mr Thomas denied having had any problems with his feet previously.
His general health apart from hyperthyroidism, which is treated, remains satisfactory.
Previous Injuries
Mr Thomas gave me to understand that he was involved in a motor vehicle accident in May 1996 and sustained a whiplash injury to his neck and back injuries but he claims he had no aggravation of the symptoms in his feet.
Family History
Mr Thomas’s parents are alive and well. He has two siblings, one brother and one sister who are alive and well.
Personal History
He has a child from a relationship and at the present time he is not in any relationship.
Clinical Examination
Mr Thomas was 177 cms tall and weighed 83 kgms. I noticed that when he walked into the consulting room he walked with a normal gait.
On examination of his feet, starting with the right foot I noticed that there was no deformity. I could not find any evidence of a flat foot deformity or any other deformity of his feet, either in his forefoot or hind foot, whilst he was standing barefoot. There was no deformity of his ankles or swelling.
I then examined Mr Thomas lying on the couch and he had no difficulty in getting onto the couch.
Examination of his right ankle showed no swelling or deformity. On palpation he complained of tenderness over the lateral as well as the medial malleolus. Movements of the ankle joint were dorsi flexion of 20°, plantar flexion was 40°. On assessing ligamentous stability I found no evidence of any instability. His Drawer’s test was negative.
Apart from tenderness over the malleoli I found no other abnormality bearing in mind that this was not the ankle that was injured, I could not understand why he had tenderness over both the medial and the lateral malleoli which would normally be the result of an injury.
Examination of the mid tarsal and subtaloid joint showed that he had a full range of eversion and inversion movements. There was no swelling or deformity of the tarsal metatarsal joints of the big toe or the other toes. Neither was there any deformity of the rest of his toes.
On palpation he had widespread tenderness throughout the forefoot, the mid foot and the hind foot including the tendo-achilles and under the metatarsal heads. He also complained of pain under the heel, which was widespread and not localised as one sees with plantar fasciitis which is specifically tender at the site of the attachment under the calcaneum.
The findings of the left foot and ankle, again the ankle showed no swelling or deformity. He complained of tenderness over both the medial and the lateral malleolus. There was no joint line tenderness. Ligamentous stability appeared to be normal. The Drawer’s test was negative. Range of movement was 20° of dorsi flexion and 40° of plantar flexion.
There was no swelling or deformity of the left foot noted.
He complained of tenderness which was widespread over the mid tarsal joint, over the attachment of the tendo-achilles which was not thickened and over the attachment of the plantar fascia and under the metatarsal heads. Movements of inversion and eversion were full.
I noticed that he did not have any callosities of the soles of his feet.
On clinical examination I found it very difficult to explain Mr Thomas’ ongoing symptomatology. I did not find any evidence of tendo-achilles problems, tenosynovitis or achilles tendonitis.
Mr Thomas certainly does not have flat foot deformity as his arches were well maintained, nor was I able to find any other forefoot or hind foot deformities in his feet.
Radiological Examination
Unfortunately no radiological examination has been carried out to exclude conditions such as avascular necrosis or sesamoid bone problems and if the problem is due to the soft tissue inflammatory condition such as plantar fasciitis or tendonitis of the achilles tendons it would appear to be that his symptoms have persisted for such a long time as the normal course of events is that these symptoms resolve spontaneously after a period of eighteen months to two years.
Examinations
I would suggest that investigations be carried out and I would favour an MRI scan which would be the ideal investigation of both his feet and ankles to see as to whether there is any underlying pathology in either of his feet to account for his ongoing symptoms.
Having completed the report, I will answer the questions you have posed in your letter.
In answer to question one, current condition.
I have detailed the symptoms complained of by Mr Thomas in the report.
In answer to question two, treatment or further investigations
I have suggested that Mr Thomas have an MRI scan of both his feet to see whether there is any pathology in the bones responsible for his ongoing symptoms, as on clinical examination I was unable to determine as to why he was complaining of these symptoms.
In answer to question three, employment (RAAF) contributed to current foot condition
Considering Mr Thomas was only enlisted for less than three months, it would be difficult to ascribe his symptoms to his service with the RAAF. Apart from an injury to his left ankle after which he claims he continued with his training program and according to Mr Thomas no further investigations were carried out.
Finally in the absence of any definitive clinical findings, I would find it very difficult to ascribe his symptomatology resulting from his period of involvement with the RAAF.
In answer to question four, pre-existing foot problems
I found no evidence of any pre-existing condition.
In answer to question five, contributed to any leg, hip or low back or other spinal condition
Having not determined any abnormality on clinical examination in either of his feet and having noted that he walked with a normal gait, although he was wearing orthosis. When he was in the room and took out the orthosis he still walked with a normal gait. I am unable to account for the symptoms of knee and hip pain.
In answer to question six, condition contributed by his employment with the RAAF
I would be of the opinion that on clinical examination Mr Thomas should be able to undertake any form of work activity, unless of course, the MRI scan shows any abnormality.
In answer to question seven, capacity for employment in the open work force
Assessment of his capacity of being able to return to work should await the findings of the MRI examination.
…”
(Exhibit R6)
45. In his oral evidence-in-chief, Mr Edibam said that the distance between the waiting room and his consulting room, over which he observed the applicant to walk “with a normal gait” (as stated in his report), is “about 2 yards”. He also confirmed that, when the applicant was in the consulting room and walked to the couch after taking off his shoes, he again walked with a normal gait.
46. Mr Edibam, when asked to explain the nature of the condition of plantar fasciitis and its general causes, said:
Plantar fasciitis, there is a layer of fascia under the skin, and the subcutaneous tissue, which is attached to the heel, and then spreads out and then slips up and goes into the toes. In plantar fasciitis the attachment to the calcaneum of the fascia can be rotated and inflamed. That gives rise to pain. There are many causes to it. So like any inflammatory disease. Often it occurs with rheumatoid arthritis. It can occur with flat-foot deformity, and it can occur with unusual activity or injury.”
(Transcript, p 83) He confirmed, however, that he did not reach a conclusion as to the appropriate diagnosis of the applicant’s feet condition, and added that an MRI examination should be undertaken to confirm whether there was any evidence of vascular necrosis which might account for his pain symptoms.
47. Mr Edibam also opined that:
·a “fairly prolonged stress” on the foot is necessary in order to cause symptoms of plantar fasciitis;
·if the applicant’s symptoms were caused by “excessive activities” during his RAAF service, then when he ceased to engage in such activities, his symptoms should have settled down and ceased within a period of 18 months to 2 years.
48. In cross-examination, Mr Edibam agreed that an MRI scan would have assisted in ascertaining the applicant’s feet condition and that, without such a report, the relevant investigation was incomplete. Asked whether it was possible that the applicant’s feet symptoms may have arisen from his RAAF service, Mr Edibam said that he “was not prepared to accept that 3-months’ service would have caused all the symptoms” in the applicant’s feet – unless there was some underlying problem which an MRI scan would either confirm or exclude.
49. Mr Edibam was asked whether the distance of “about 2 yards” from the waiting room to his consulting room, over which he said that the applicant walked “with a normal gait”, was a sufficient distance for the making of a proper assessment of his gait. Mr Edibam responded that, if the applicant had then been in pain, “any walking” would cause him to limp. Mr Edibam acknowledged that the distance over which he saw the applicant walk with a normal gait in his consulting room after taking off his shoes was “about less than a yard” but he added:
“If you had pain you would have limped, even in that short distance. You know, people don’t put full weight if it is painful.”
(Transcript, p 86)
50. In response to a question from the Tribunal, Mr Edibam explained that, when he stated in his report that the applicant “did not have any callosities of the soles of his feet”, he was referring to abnormal callosities. He added that, with any abnormal weight-bearing, there would be such callosities, but that he found that the soles of the applicant’s feet were normal – that is, there was a thickening of the skin in the normal weight-bearing areas, but no abnormal callosities.
Dr D Elder
51. Dr Elder said that he is an Occupational Physician and has practised in the area of occupational medicine in Australia since 1992. His specialist qualifications include a Fellowship of the Australasian Faculty of Occupational Medicine. Dr Elder confirmed that he had prepared 2 reports, one dated 3 October 2001 (T42 – set out in paragraph 24 above), the other dated 28 February 2002 (T51 – set out in paragraph 28 above), and he verified the contents of those reports.
52. Dr Elder confirmed that he had “fully” examined the applicant and he rejected the applicant’s description of his physical examination as “perfunctory”. He also rejected the applicant’s assertion that he did not accompany the applicant from the reception area to his consultation room, and that his view of the applicant walking to his consultation room was blocked by a curtain. He reiterated that his practice is always to accompany the person to his room, not only for the sake of politeness, but also in order that he can observe their gait. He added that his recollection of the Perth rooms (his practice is based in Melbourne) is that there are no curtains hanging from the ceiling.
53. Dr Elder confirmed that he had read Mr Edibam’s report of 29 May 2003 and commented that it was consistent with his own assessment in that neither of them had found any abnormality in the applicant’s feet. Asked to elaborate on the statement, in his report of 3 October 2001, that the applicant had “significant callus formation”, Dr Elder said that he was referring to the heavier skin formation that occurs where the soles of the feet come into contact with the ground, which, in the case of the applicant’s feet, was a normal pattern indicating that he had a normal strike pattern in his feet. Asked to comment on Mr Edibam’s opinion that, if the applicant had contracted plantar fasciitis in his RAAF service, it would normally have resolved within 18-24 months after service, Dr Elder said:
“Yes … that’s probably a fair assessment of the natural history of the disease, yes – certainly doesn’t go on for 21 years.”
(Transcript, p 104)
54. Finally, Dr Elder was asked to comment on a Bilateral Foot Ultrasound report of Dr A Henderson, dated 6 May 2004, in relation to the applicant, which was tendered in evidence by the applicant (Exhibit A7). That report stated:
“Clinical History: Painful soles of both feet.
Findings: Sonography of the plantar soft tissues of both feet demonstrates bursal thickening overlying the plantar fascia bilaterally. The appearances would be in keeping with bilateral plantar fasciitis. …”
Dr Elder commented that that report, dated 6 May 2004, could have no effect on his report, dated 3 October 2001. Nor, he added, does that report of 6 May 2004 indicate that there is any correlation between the present condition of the applicant’s feet (which, according to the report, is “in keeping with bilateral plantar fasciitis”) and the condition of bilateral plantar fasciitis which he contracted in 1983. He said:
“I don’t think that you can make that correlation, no. I mean, the natural history of plantar fasciitis would be to resolve.”
(Transcript, p 104)
The Legislation
55. Pursuant to s 14(1) of the Act, the respondent is “liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”. Section 4(1) of the Act contains the following relevant definitions:
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
“impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
“injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
…”
Section 4(9) of the Act provides:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
Sections 16 and 19 of the Act make provision for the payment of compensation by way of, respectively, the cost of reasonable medical treatment obtained in relation to an “injury” (as defined in s4(1)), and weekly payments where an “injury” has resulted in “incapacity for work” (as defined in s 4(9)).
56. Part VI of the Act deals with reconsideration and review of determinations made under the Act by determining authorities. In s 60(1) of the Act, the term “determination” is defined to mean, inter alia, a determination made under specified provisions of the Act, including s 14, s 16 and s 19, and the expression “reviewable decision” is defined to mean “a decision made under subsection 38(4) or section 62”. Pursuant to s 62 of the Act, a determining authority is authorised to reconsider a “determination” (as defined) made by it, either on its own motion or on request by the claimant or the relevant Commonwealth authority. Pursuant to s 64(1) of the Act, an application may be made to this Tribunal by the claimant or the relevant Commonwealth authority or licensed corporation for review of a “reviewable decision” (as defined).
Consideration and Findings
57. On the basis of the contemporaneous medical evidence in the applicant’s service records (Exhibit R1) and in the T documents (T4, T8), referred to in paragraphs 5-7 above, the Tribunal finds that the applicant sustained an “injury” (as defined in s 4(1) of the Act) to his feet – namely, Achilles tendonitis and plantar fasciitis associated with calcaneal and forefoot varus – in September/October 1983 in the course of his service in the RAAF, and that that injury resulted in impairment and at least partial incapacity for work at that time.
58. On the basis of the expert medical evidence of Dr Elder and Mr Edibam, however, the Tribunal is satisfied on the balance of probabilities, and finds, that the abovementioned injury to the applicant’s feet had resolved within a period of 18-24 months after his discharge from the RAAF in November 1983 and that thereafter he was neither suffering impairment, nor was incapacitated for work, as a result of that injury. The Tribunal notes that that finding is consistent with the finding by Mr Stewart, Orthopaedic Surgeon, on 19 April 1985 that, on examination, the applicant had “normal anatomy and feet contours” and a normal gait (T7 - see paragraph 15 above).
59. The Tribunal notes the evidence presented by the applicant in the form of reports by podiatrists, Ms C Mills and Mr C Boulton, prepared in 2000/2001 but observes that none of those reports refers to any causal relationship between the applicant’s feet condition and his RAAF service in September/October 1983. The Tribunal also notes the applicant’s evidence that he continues to suffer pain symptoms in both feet, which he attributes to his RAAF service in September/October 1983, but, in the absence of medical or other expert evidence connecting such pain symptoms with the circumstances of his RAAF service in September/October 1983, and having regard to the abovementioned expert medical evidence of Dr Elder and Mr Edibam, the Tribunal is not satisfied that there is such a connection. Accordingly, the Tribunal finds that if the applicant is presently suffering from a feet condition, that condition does not constitute an “injury” within the meaning, and for the purposes, of the Act.
60. It follows from the above findings that, although the applicant suffered a compensable “injury” to his feet in the course of his RAAF service in September/October 1983, resulting in impairment and at least partial incapacity for work, he was, by the end of 1985 at the latest, no longer suffering impairment or any incapacity for work as a result of that “injury”, and that, accordingly, compensation has not been payable to him under the Act – in particular, under s16 or s19 of the Act – since that time, and is not presently payable to him, and the Tribunal so finds.
Conclusion
61. Notwithstanding the abovementioned findings, the “reviewable decision” in this matter must be set aside for the following reasons. In determining on 9 October 2001 that, “on and from 3 October 2001”, the Commonwealth was not liable to pay compensation to the applicant under the Act in respect of an injury described as “achillis (sic) tendonitis and plantar fasciitis left-right associated with calcaneal and forefoot varus” (for which liability to pay compensation under the Act had been accepted by the MCRS on 26 April 2001), the delegate of the MCRS purported to bind the MCRS to reject any future claim for compensation under the Act in respect of that injury, and thereby made a determination which was incompatible with the Act and was, accordingly, a nullity. The “reviewable decision” of 22 April 2002, which purported to affirm that invalid determination, is, therefore, also a nullity: Australian Postal Corporation v Oudyn (2003) 73 ALD 659; Rosillo v Telstra Corporation Ltd (2003) 38 AAR 243; Re Liu and Comcare (2004) 79 ALD 119.
62. The correct or preferable decision in this matter is, instead, that the respondent is liable under s 14(1) of the Act to pay compensation to the applicant in accordance with the Act in respect of an injury described as “achillis (sic) tendonitis and plantar fasciitis left-right associated with calcaneal and forefoot varus” sustained by him in September/October 1983 but that, for the period from the end of 1985 to the present date, compensation is not payable to the applicant under either s 16 or s 19 of the Act in respect of that injury.
Decision
63. For the above reasons, the Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable under s 14(1) of the Act to pay compensation to the applicant in accordance with the Act in respect of an injury described as “achillis (sic) tendonitis and plantar fasciitis left-right associated with calcaneal and forefoot varus” sustained by him in September/October 1983 but that, for the period from the end of 1985 to the present date, compensation is not payable to the applicant under either s 16 or s 19 of the Act in respect of that injury.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor SD Hotop, Deputy President and Dr P A Staer, Member
Signed: ...........(sgd V Wong).................................................
AssociateDate/s of Hearing 2-3 June 2004
Date of Decision 18 November 2004
Counsel for the Applicant In person
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Sparke Helmore
- AGLC
- Thomas and Military Rehabilitation and Compensation Commission [2004] AATA 1214
- Case
- [2004] AATA 1214
- Decision Date
CaseChat Overview and Summary
The Court examined the Safety, Rehabilitation and Compensation Act 1988 (Cth) and relevant case law to determine the correct interpretation of the statutory provisions and the scope of the Commission’s powers. The Court found that the October 2001 determination and the April 2002 reviewable decision were nullities because they were inconsistent with the statutory obligations. The Court held that once the Commission had accepted liability for the injury, it could not unilaterally withdraw that liability. The Commission's actions in revoking its acceptance of liability were beyond its statutory powers and thus invalid.
Consequently, the Court set aside the reviewable decision and determined that the Commission was liable to pay compensation in respect of the foot injury sustained in 1983, but held that compensation was not payable from the end of 1985 to the present date under the Act. This decision underscored the importance of statutory interpretation and adherence to legislative mandates in administrative law.
Orders
Orders of the court
The Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) to pay compensation to the applicant in accordance with the Act in respect of an injury described as “achillis (sic) tendonitis and plantar fasciitis left-right associated with calcaneal and forefoot varus” sustained by him in September/October 1983 but that, for the period from the end of 1985 to the present date, compensation is not payable to the applicant under either s 16 or s 19 of the Act in respect of that injury.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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