Thomas and Military Rehabilitation and Compensation Commission (Compensation)

Thomas and Military Rehabilitation and Compensation Commission (Compensation) [2021] AATA 4389 (26 November 2021)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2019/8326; 2019/8327
Re:Allan Thomas
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:26 November 2021
Place:Brisbane

The reviewable decisions of 6 December 2019 are affirmed
..........................[SGD].........................
Deputy President J Sosso
Catchwords
COMPENSATION – claim for dental disease – periodontitis – subgingival calculus – gingivitis – periodontal abscess – tooth wear – loss of teeth – whether condition could be diagnosed – whether defence service materially contributed to the claimed conditions – reviewable decisions affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2017] FCAFC 143
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Secondary Materials
Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Bill 2016 (Cth) Explanatory Memorandum
REASONS FOR DECISION
Deputy President J Sosso
26 November 2021
INTRODUCTION

Mr Allan Thomas (the veteran) has applied to the Administrative Appeals Tribunal (the Tribunal) for a review of two decisions of the Military Rehabilitation and Compensation Commission (the Respondent), both dated 6 December 2019, namely:
(a)2019/8326 for the claimed conditions of “subgingival calculus, gingivitis, periodontal abscess” – Exhibit 1 T27 pp. 256 - 261; and
(b)2019/8327 for the claimed conditions of “loss of teeth, tooth wear and dental disease” – Exhibit 1 T28 pp. 262 – 266.
Both of the reviewable decisions were made pursuant to the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the Act).
On 18 May 2019 the veteran made a claim under the Act for various injuries/diseases – Exhibit 1 T6.1 – T6.9 pp. 167 – 186.
So far as is relevant for this matter, the veteran claimed that he was suffering from “dental disease” – Exhibit 1 T6.1 p. 168. In the “Injury or disease details sheet”, the veteran provided the following details of the dental disease he claimed he was suffering as a result of his defence service:
(a)Gingivitis, with signs and symptoms of inflammation of the gum. The service connection was stated to be “[e]ating plenty of sugar base food and salt which required more than 1 cleaning session of teeth daily. Due to constant training between meals and having to be at certain activities well before time, did not leave much time to get back to barracks to clean teeth. Lack of cleaning in the ADF” – Exhibit 1 T6.5 p. 182;
(b)Loss of teeth, with signs and symptoms of noticeable space between teeth. The service connection was also stated to be eating sugar-based food and salt and not having sufficient time to return to barracks and clean teeth – Exhibit 1 T6.6 p. 183;
(c)Tooth wear, with signs and symptoms of constant gritting of teeth. The service connection was stated to be “tooth tissue is ‘fractured’ due to stress lesions caused by extrinsic forces on the enamel. I believe service contributed to this through the arduous training and exercising I had to do as a member of the ADF” – Exhibit 1 T6.7 p. 184;
(d)Periodontal abscess with signs and symptoms of pus build-up in the oral cavity. The service connection was stated to be eating “high sugar and salt foods from ration packs and foods with high concentrate of salt mainly when out on exercise or in barracks at messes. This enabled me to maintain strength and endurance when needed on a daily basis and lack of brushing of teeth after eating” – Exhibit 1 T6.8 p. 185; and
(e)Subgingival calculus with signs and symptoms of “harden dental plaque”. The claimed service connection was the same as with periodontal abscess – Exhibit 1 T6.9 p. 186.
The veteran was born in 1964 and is currently 57 years old. He enlisted in the Australian Army in October 1984 when he was 20 years old and was voluntarily discharged in 1998 having attained the rank of Sergeant – Exhibit 1 T3 p. 9. Subsequent to the veteran’s discharge he performed Reserve service between 1998 and 2002 – Exhibit 1 T3 pp. 9 – 10.
In the Entry/Medical Examination Record dated 19 September 1984 the examining Doctor (Dr Selby) noted that the veteran’s lower left premolar was missing and the veteran’s teeth and gums were “abnormal” – Exhibit 1 T5 p. 158.
The Tribunal has been provided with a copy of the veteran’s Dental Clinical Record which lists numerous consultations over the period of his service – Exhibit 1 T4 pp. 16 – 19.
On 23 October 1984 it is recorded that the veteran was diagnosed with “OHI – S/C Prophy (green stain)” – Exhibit 1 T4 p. 16.
The veteran’s Dental Clinical Record discloses that the veteran attended for a dental examination on 21 January 1986 and was reported as Class 1 for dental health – Exhibit 1 T4 p. 16. Dental Class 1 signifies that a person is deployable.
The first record of the veteran having subgingival calculus is a notation of 21 June 1990 – Exhibit 1 T4 p. 18.
On 16 May 1991 the veteran was referred to Dr Evans, a periodontist, for the “need for specialist treatment” – Exhibit 1 T4 p. 20.
In February 1995 the veteran was provided with a mouthguard and in August 1995 he was treated for periodontitis – Exhibit 1 T4 p. 19.
The veteran’s Medical Board Examination Records for March 1989 (Dr Wheatley), April 1993 (Dr Grace) and 18 September 1998 (Dr De Vries) disclose that the assessing Doctors opined that the veteran’s teeth and gums were normal – Exhibit 1 T5 pp. 44, 86 and 103.
The veteran has the following accepted conditions under the Veterans’ Entitlements Act 1986 (the VEA) – Exhibit 4 p. 2:
(a)Osteoarthrosis of the right knee;
(b)Ligamentous strain of the left knee;
(c)Ligamentous strain of the left shoulder;
(d)Post Traumatic Stress Disorder;
(e)Tinea of the skin;
(f)Ligamentous strain of the right shoulder;
(g)Cervical spondylosis;
(h)Tinnitus;
(i)Exostosis of the left foot;
(j)Lumbar spondylosis; and
(k)Bilateral tinnitus.
In addition, the veteran has the following accepted conditions under the Act – Exhibit 4 pp. 2 – 3:
(a)Lumbar spondylosis;
(b)Left foot exostosis;
(c)Neck strain;
(d)Right knee strain;
(e)Right shoulder strain;
(f)Left shoulder strain;
(g)Left knee strain;
(h)Cervical spondylosis;
(i)Osteoarthritis right knee;
(j)Osteoarthritis left knee;
(k)Osteoarthritis at the 1^st tarsometatarsal joint of the left-mid foot;
(l)Left shoulder rotator cuff syndrome;
(m)Right shoulder rotator cuff syndrome;
(n)Laceration in the web space palm 2-3 digits of the right hand;
(o)Osteoarthritis of the left knee; and
(p)Tinea cruris.
Not surprisingly, having regard to the number and range of accepted service-related conditions, the veteran is the recipient of a disability pension under the VEA at the Special Rate and is also the holder of a Gold Repatriation Health Card – Exhibit 4 p. 3.
In the veteran’s Statement of Facts and Contention (Exhibit 3) dated 21 January 2020, he makes the following submissions:
“I believe the current state of my teeth have worsened significantly during my service as indicated in 1991, some 7 years after entering the Australian Defence Force (ADF). I can honestly say this is due to the training I went through posted to an operational deployment battalion (company) for many years. Were we had to endure and succumb to high level of fitness in order to meet the requirement of overseas deployment? You spent more time out in the field conduct field exercise which required a lot of walking daily through undulated terrain during the day and at night which tested your physical capabilities daily.
Subgingival calculus
I can honestly say that given what I did say in my initial claim application and my further report, there were many times when were out bush we used to drink running creek water and eat on the run on many occasions which I believe contributed to the subgingival calculus, this was common with soldiers when undergoing training, there was little time for thorough cleaning of teeth, I would go on to say that most of the time you would spend no more than a minute cleaning your teeth, because you were always on the go. I believe the lack of time and being in a physical and demanding environment which required a lot of endurance I usually found myself gritting my teeth in order to achieve my goals. During my time as an infantry soldier did contribute significantly to the worsening of my teeth in general. I can’t remember a time in my life where my body was not challenged both physically and mentally throughout my time as an infantry soldier.
Gingivitis
I believe my gingivitis was significantly impacted by my service, again being a foot slogger in the ADF (Infantry) I pushed myself daily to achieve all the tasks both physically and emotionally which required making a lot of sacrifices on a daily basis. Most times it caused health and dental concerns throughout my service tenure. I honestly believe the sacrifices I had made throughout my service has significantly impacted on my health and dental hygiene. Insufficient time allocated to provide the care one needed for hygiene; I believe this contributed significantly to my gum disease.
Periodontal Abscess
I believe that my service had significantly impacted on Periodontal Abscess, being in an environment that tested your capabilities both physically and mentally daily did lead to poor brushing and flossing habits that allow plaque – a sticky film of bacteria – to build up on the teeth and harden. It has been building up all throughout my service tenure until a final diagnosis was made on 12 June 1990.”
Following the receipt of the veteran’s claims he was required by the Department of Veterans’ Affairs to undergo a medical assessment by Dr Feroz Ameerjan – Exhibit 1 T7 pp. 187– 191.
With respect to the claim for periodontal abscess – periodontitis, the Contracted Dental Advisor (CDA) opined that the Applicant’s service had not contributed to the development or aggravation of this condition. He provided the following reasons – Exhibit 1 T9 p. 196:
“There are no factors that have been identified as are relevant to service being the cause for the development of periodontal disease.
There is no evidence to indicate the restriction to cleaning teeth once a day will cause periodontal disease. Despite the general recommendation of twice daily cleaning, the control of oral health only requires complete disturbance of the plaque biofilm (on all tooth surfaces) once a day. The collection of sub gingival calculus and development of periodontal disease indicates oral hygiene level not achieving disruption of plaque on a daily basis.”
Next, with respect to the claimed gingivitis condition, the CDA was of the opinion that the veteran’s military service had not contributed to the development or aggravation of this condition. The CDA opined – Exhibit 1 T10 p. 198:
“Comments: No evidence as to increase in Gingivitis
Control is by adequate cleaning
Challenge is not the number of times the teeth are cleaned but the client’s ability to clean adequately – including compliance with dental floss.”
With respect to the subgingival calculus condition, the CDA made these observations – Exhibit 1 T11 p. 199:
“Comments: this is not a condition but the sign of inadequate or incomplete oral hygiene – and does not represent a diagnosis or confirmation that a diagnosis is appropriate.”
Next, the CDA commented on the claimed condition of loss of teeth and made these observations – Exhibit 1 T12 p. 202:
“Comments: no tooth loss during service period except for tooth root removal at start of service – loss of crown of tooth prior to entry to service.”
With respect to the claimed condition of dental disease without diagnosis the CDA made these comments – Exhibit 1 T13 p. 204:
“Comments: Only condition beyond those claimed – dental caries
Dental caries per-existing service – entry to service 7 teeth filled one requiring extraction – (25 retained roots) 5 other teeth missing
On completion of service 11 teeth with fillings – no increase over the 14 year period compared with past experience.
No evidence of deterioration outside the expected range of condition expected given previous experience.”
Finally, with respect to the claimed condition of “toothwear” the CDA made these observations – Exhibit 1 T14 p. 206:
“Comments: No tooth wear reported or recorded outside normal range of wear expected. No evidence to indicate failure of teeth outside range of expectation in normal wear of heavily filled teeth.”
On 9 August 2019 the veteran’s claim for periodontitis, gingivitis and subgingival calculus was not accepted. The Delegate pointed out that in order to accept a claim she needed to be reasonably satisfied that – Exhibit 1 T20 p. 234:
(a)the diagnosed condition is related to a period of defence service prior to 1 July 2004, which is covered under the Act;
(b)it is probable that the claimed injury arose out of, or in the course of, the veteran’s defence service, or that defence service was a contributing factor to contracting the claimed disease; and
(c)there is no exclusion under the Act that prevents liability being accepted.
First, with respect to the claimed subgingival calculus the Delegate found – Exhibit 1 T20 p. 235:
“A diagnosis for your Subgingival Calculus could not be confirmed by medical evidence. For liability to be accepted under the DRCA, the evidence must first show the presence of a medically definable condition that arose out of, or in the course of your military employment.
The DMA has stated ‘this is not a condition but the sign of inadequate or incomplete oral hygiene – and does not represent a diagnosis or confirmation that a diagnosis is appropriate’.
I am not satisfied that the definition of an injury as described by Section 5A has been met and on this basis liability has not been accepted.”
Second, the Delegate accepted that the veteran suffered from gingivitis with a clinical onset of 8 October 1984 – Exhibit 1 T20 p. 235. The Delegate made this observation – Exhibit 1 T20 p. 236:
“Defence dental records show a diagnosis of Gingivitis on the 08 October 1984, some 5 days after joining the ADF, with additional cleaning on the 23 October 1984 to remove green stain. No evidence can be seen of an aggravation during your service.”
Reference was then made to the veteran’s contention that this condition was caused by the consumption of sugary and salty foods together with irregular teeth cleaning. The Delegate then quoted the “DMA” – Exhibit 1 T20 p. 236:
“Control is by adequate cleaning. Challenge is not the number of times the teeth are cleaned but the client’s ability to clean adequately – including compliance with dental floss”.
Accordingly, the Delegate was not reasonably satisfied the veteran’s defence service was a contributing factor to the contraction of this condition.
Third, the Delegate accepted that the veteran suffered from periodontitis with a clinical onset of 12 June 1990, which was the date the veteran first sought medical treatment for this condition – Exhibit 1 T20 p. 236.
After quoting from the report of the CDA quoted above, the Delegate concluded that she was unable to confirm that the veteran’s defence service “materially contributed to the causation, aggravation, acceleration or recurrence” of the claimed condition – Exhibit 1 T20 p. 236.
The Delegate noted at the outset of her Determination that the claimed dental conditions of dental disease, tooth wear and loss of teeth were still being considered – Exhibit 1 T20 p. 232.
On 26 August 2019 the Delegate rejected each of the dental conditions outlined above – Exhibit 1 T25 pp. 247 – 252.
First, with respect to dental disease, the Delegate noted that the CDA could not confirm a diagnosis for the claimed “dental disease”, and made the following finding – Exhibit 1 T25 p. 250:
“For liability to be accepted under the DRCA, the evidence must first show the presence of a medically definable condition that arose out of, or in the course of, your military employment.
The Dental advised [sic] has confirmed this condition has already been addressed under the previously assessed Periodontitis, no additional stand [sic] diagnosis could to [sic] established.”
Second, the Delegate also found, for similar reasons, that a diagnosis for the claimed tooth wear could not be confirmed by medical evidence – Exhibit 1 T25 pp. 250 – 251.
Finally, the Delegate accepted that the claimed condition of loss of teeth was a diagnosed condition which was a disease under the Act. The Delegate, however, found that the evidence did not confirm a nexus between the veteran’s loss of teeth and his defence service. The following reasons were given by the Delegate – Exhibit 1 T25 p. 251:
“Defence dental records show a number of teeth already missing prior to joining the ADF, with your first extraction during service on the 25 October 1984, less than a month after joining the ADF as a result of pathology. It is noted a number of other teeth have also been removed but the DMA opined these are likely as a result of periodontal disease.”
The veteran sought reconsideration of both determinations.
On 6 December 2019 the Review Officer affirmed the determination of 9 August 2019 with respect to the claimed conditions of subgingival calculus, gingivitis and periodontal abscess. The reasons given by the Review Officer mirrored those given by the Delegate and in each instance the Review Officer stated that she could find no error in the determination of the Review Officer – Exhibit 1 T27 pp. 256 – 261.
Also on 6 December 2019 the Review Officer affirmed the determination of 26 August 2019 with respect to the claimed conditions of dental disease, tooth wear and loss of teeth. The Review Officer’s reasons with respect to dental disease and tooth wear were similar to those of the Delegate. With respect to the loss of teeth condition, the following reasons were given – Exhibit 1 T28 p. 264:
“The CDA has confirmed that your Defence dental records shows a number of teeth already missing and a number of filled teeth prior to joining the ADF, with your first extraction during service on the 25 October 1984, less than a month after joining the ADF as a result of pathology (dental caries). From the dental service record there was no tooth loss during the service period and no evidence of deterioration outside of expected range based on given previous condition.”
The Review Officer found that she was unable to confirm a nexus between the loss of the veteran’s teeth and his defence service, and affirmed the Delegate’s determination.
On 9 December 2019, the veteran sought review of both reviewable decisions of 6 December 2019 with the Tribunal – Exhibit 1 T1 pp. 1 – 4.
THE HEARING
A Hearing was convened in Brisbane on 23 June 2021. The veteran appeared on his own behalf and the Respondent was represented by Ms L Pendle of the Australian Government Solicitor.
Due to social distancing requirements brought about by the COVID-19 pandemic the proceedings were conducted via Microsoft Teams.
No witnesses were called by the parties, but the veteran gave evidence and was cross‑examined by Ms Pendle.
LEGISLATIVE FRAMEWORK

Prior to the commencement of the Act, pensions, compensation, rehabilitation, treatment and other benefits for veterans were provided under three separate statutes, namely: the VEA, the Military Rehabilitation and Compensation Act 2004 (MRCA) and the Safety, Rehabilitation and Compensation Act 1988 (SRCA).
In general terms, veterans who rendered eligible service until 7 April 1994 are governed by the provisions of the VEA, those rendering eligible service between 1988 and 2004 are governed by the SRCA and those rendering eligible service after 1 July 2004 by the MRCA.
The Act was enacted pursuant to items 1 and 2 in Schedule 1 of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 commencing on 12 October 2017.
Item 1 created a new Act in a form very similar to the SRCA and Item 2 saved all previous versions of the SCRA and instruments made under the SRCA.
Pursuant to Item 1, the year the Act was deemed to be passed is 1988 and its number is taken to be 156.
The Explanatory Memorandum to the Bill provided the following helpful explanation:
“The amendments made by the Bill will create the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRCA), which will be a re-enacted version of the Safety, Rehabilitation and Compensation Act 1988 (the SRCA) that is modified to apply only to members of the Defence Force and their dependents.
As a consequence the Bill will also amend the SRCA to remove cover for members of the Defence Force and their dependants from that Act.
The DRCA will apply in relation to an injury, disease, death, loss or damage that relates to certain employment in the Defence Force that occurred before the commencement of the Military Rehabilitation and Compensation Act 2004 (Military Rehabilitation and Compensation Act) on 1 July 2004.
The DRCA will provide Defence Force members with access to a ‘military specific’ compensation and rehabilitation scheme and will enable the Military Rehabilitation and Compensation Commission (MRCC) to bring the newly enacted DRCA into closer alignment with the Military Rehabilitation and Compensation Act as part of future amendments to these Acts…”
Turning now to the Act, the threshold provision is s 14(1) which provides that the Commonwealth is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
For the purposes of the Act an “employee” means a member of the Defence Force – s 5(1).
Further, for the purposes of the Act, a person who is a member of the Defence Force is taken to be employed by the Commonwealth, and employment is taken to be constituted by the person’s performance of duties as a member of the Defence Force – s 5(2).
The Act applies to an injury or an aggravation of an injury that arises out of, or in the course of, the employee’s employment as a member of the Defence Force, which employment occurred after the commencement of the Commonwealth Employees’ Rehabilitation and CompensationAct 1988 (1 December 1988) but before the commencement of the MRCA (1 July 2004) – s 4AA(1).
The term “injury” is defined by s 5A to mean:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, an 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”
It will be seen that the definition of “injury” comprises two main subsets, namely “disease” and “injury (other than a disease)” each of which comprises separate but related bases of liability. The third basis of liability is an aggravation of a physical or mental injury (other than a disease).
As the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 482, the first task of the tribunal of fact is to determine if the employee is suffering a disease. However, it is important to note, that “disease” and “injury (other than a disease)” are not mutually exclusive categories – Prain v Comcare [2017] FCAFC 143 at [72] (Prain). Kenny, Tracey and Bromberg JJ in Prain made the following observation (at [74]):
“We do not think that it was impermissible for the Tribunal to note that the authorities ‘tended to place mental illness in the statutory category of ‘disease’. We would not read the Tribunal’s statements in [20] of its reasons as requiring the conclusion that mental illness must be categorised as a disease and, for that reason, could not also be classed as an ‘injury (other than a disease)’. Once again the Tribunal’s reasons assumed, correctly, that whether or not a mental illness is to be categorised as a ‘disease’ or, alternatively, an ‘injury (other than a disease)’ will depend on the nature and incidents of the physiological change.”
“Disease” is defined by s 5B of the Act to mean:
“(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth.”
The term “ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“Aggravation” includes acceleration or recurrence – s 4(1). Reference can also be made to the following observations of Windeyer J in Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593:
“’Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom v Semlitch…”
It is also important to note that the test of employment contribution for a disease (or aggravation thereof) is dependent on the timing of the onset of the compensable “injury”. The SRCA was amended in 2007, replacing the “material degree” test with the “significant degree” test – Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (the Amendment Act).
Item 41 in Schedule 1 of the Amendment Act provides as follows:
“41 Application of amendment of the definition of disease (section 5B)
(1) The definition of disease in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment:
that the employee suffers on or after the day after this Act receives the Royal Assent.
(2) For the purposes of subitem (1), an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988”
(bold in the original)
Subsection 7(4) of the Act provides that an employee is taken to have sustained an injury, being a disease, or an aggravation of a disease, when, inter alia, the employee first sought medical treatment for the disease, or aggravation.
As the veteran’s claimed conditions arose prior to the commencement of the Amendment Act, the relevant provisions of the SRCA are those applicable at the time of his claimed conditions. Importantly, this means that the employment contribution in this matter is the material contribution test.
Reference can be made to the observations of Finn J in Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536 for guidance in ascertaining the meaning of “material degree”:
“13…the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded.
14 What is problematic is identifying where the threshold lies. Treloar’s case… set its own threshold of sorts for satisfying the 1971 Act’s ‘contributing factor’ requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar… at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as ‘material’: see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term ‘material’ in the phrase ‘in a material degree’ is used in the SRC Act. The legislative history of this definition makes this plain.
15. There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions in the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
‘4. In a material degree; substantially, considerably.’
An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (10 AAR at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie Dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’.
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii)whether this will be so in a given case will be a matter of fact and degree.”
It is important in this context to refer to s 5B(3) which defines “significant degree” as a “degree that is substantially more than material.” It follows, then, that a “material degree” is substantially less than a “significant degree”. As his Honour Justice Finn explained above, what meets the threshold of a material degree is a matter of fact and degree, but it is clear that it is a more generous standard for an injured worker than that which applies following the 2007 amendments.
CONSIDERATION
Introduction
It is clear from the above discussion that in order for the veteran to obtain compensation under the Act, firstly, he must have suffered an injury which has resulted in impairment – s 14.
Next, if it is established that the veteran has suffered an injury, it is then necessary to determine if it is a disease, and if it not a disease, then an injury other than a disease.
Third, if the injury is a disease, then it is necessary to consider if it is an:
(a)ailment suffered by the veteran; or
(b)an aggravation of such an ailment.
In either case, that must have been contributed to, to a material degree, by the veteran’s employment with the Commonwealth – s 5B.
Reports of Dr Nasser
In addition to the reports of the CDA, the Tribunal also has before it two reports from Dr Brendan Nasser, General Dentist. Dr Nasser was briefed by the legal representatives of the Respondent to provide a report based on a series of Questions based on the veteran’s conditions and symptoms – Exhibits 9 and 11.
The first report is dated 10 June 2020 – Exhibit 10 pp. 82 – 88. Unfortunately, Dr Nasser’s report is based on a paper analysis of the medical evidence and he did not perform a clinical examination of the veteran. For that reason he was unable to establish whether the veteran currently suffers from subgingival calculus, gingivitis, periodontal abscess, dental disease, tooth wear or loss of teeth – Exhibit 10 p. 84.
Dr Nasser noted that, based on the clinical records, the veteran had a history of periodontal disease since May 1991 – Exhibit 10 p. 85. He quoted from a professional paper of 2018 as follows – Exhibit 10 p. 84:
“Periodontitis is one of the most ubiquitous diseases and is characterised by the destruction of connective tissue and dental bone support after an inflammatory host response secondary to infection by periodontal bacteria. Severe periodontitis, which may result in tooth loss, is found in 5-20% of most adult populations worldwide.”
After this quote, Dr Nasser then opined – Exhibit 10 p. 85:
“Periodontitis or periodontal disease, is the slow and at time asymptomatic destruction of the soft tissue and hard tissue support of a tooth or teeth. The cause of periodontal disease is the bacteria in dental plaque. Dental plaque is the sticky matrix of food particles and bacteria that attach to the surfaces of teeth. Dental plaque is the primary causative factor for dental caries and periodontal disease.”
Dr Nasser noted (Exhibit 10 p. 85) that on 16 May 1991 there was a Dental Specialist Referral for specialist treatment of the veteran in relation to “5 mm pockets mesial to 26, 27, 28, and 3-4 mm pockets mesial to 21 and 38.” This indicated, according to Dr Nasser, that the veteran was suffering from periodontal disease in May 1991.
Dr Nasser provided a supplementary report dated 24 December 2020 – Exhibit 12.
The legal representatives for the Respondent posed six “Questions” for Dr Nasser. The first referred to Dr Nasser’s opinion that the veteran suffered from periodontal disease from May 1991, and then asked in relation to the claimed conditions of subgingival calculus, gingivitis, periodontal abscess, dental disease, tooth wear and loss of teeth, whether these conditions were signs and symptoms of periodontal disease. Dr Nasser response was as follows – Exhibit 12 p. 97:
“Two of the claimed conditions, namely gingivitis and periodontal abscess, are signs and symptoms of periodontal disease…
Dental diseases include dental caries (tooth decay) and periodontal disease. All dental diseases are caused by the microbial pathogens (bacteria) in dental plaque.
Tooth wear can be one of three conditions: tooth attrition (tooth to tooth wear from clenching and grinding of the teeth, which is also known as bruxism), tooth abrasion (vigorous toothbrushing can wear the tooth structure particularly on buccal and lingual root surfaces where gingival recession has occurred), tooth erosion (acidic tooth loss without the involvement of bacteria; two origins include intrinsic (gastric reflux) or extrinsic (acidic sources in diet or industrial chemicals)).
Loss of teeth may be caused by dental caries (tooth decay), periodontal disease or trauma.
In conclusion, the claimed conditions of gingivitis and periodontal abscess are the only conditions that are signs and symptoms of periodontal disease.”
Dr Nasser was also asked the following Question:
“Having reviewed all the material provided to you….in your opinion, has Mr Thomas’ diagnosed conditions been aggravated in any way by his military service, and in particular during the period 1987 – 1990?”
(bold in the original)
The following response was given – Exhibit 12 p. 98:
“The chronological summary of Mr Thomas’ deployment to Townsville between 1987 and 1990 listed four dates when his dental health was ‘class 1’ or ‘normal’. These dates were 30 June 1987, 17 October 1988, 18 September 1988, and 9 March 1989. These dates are over 30 years before Dr Adrian Hoffman’s diagnosis of ‘generalised moderate to advanced chronic periodontitis’ on 15 October 2018.
It is impossible to ascertain, and unlikely, that Mr Thomas’ diagnosed conditions have been aggravated in any way by his military service during the period 1987 – 1990.”
Claimed Conditions
The Tribunal has been presented with clear, consistent and unqualified medical diagnoses from the CDA and Dr Nasser.
First, the Tribunal accepts that the veteran has been suffering from periodontal disease since either June 1990 (when the Comcare Delegate found the veteran first sought medical treatment for this medical condition - Exhibit 1 T20 p. 236) or May 1991 as opined by Dr Nasser. For the purposes of this matter, the choice of either date makes no difference to the outcome. Accordingly, the “dental disease” the veteran claimed he was suffering from (Exhibit 1 T6.1 p. 168) can be more particularly identified as periodontal disease.
Second, the Tribunal accepts Dr Nasser’s opinion that the claimed conditions of gingivitis and periodontal abscess constitute signs and symptoms of periodontal disease – Exhibit 12 p. 97. As such, neither gingivitis or periodontal abscess are separate conditions (injuries) for the purposes of the Act.
Third, the Tribunal finds that the veteran has suffered an injury, namely, periodontal disease, which condition is a disease for the purposes of the Act. The Tribunal also finds that this condition is an ailment, and the question which needs to be answered is whether the veteran’s defence service contributed, to a material degree, to the contraction or aggravation of this ailment.
As outlined above, the veteran has contended that due to his sugar-based food diet and restrictions on his ability to clean his teeth due to constant training, he developed periodontitis. However, the CDA made the following diagnosis – Exhibit 1 T9 p. 196:
“There are no factors that have been identified as are relevant to service being the cause for the development of periodontal disease.
There is no evidence to indicate the restriction to cleaning teeth once a day will cause periodontal disease. Despite the general recommendation of twice daily cleaning, the control of oral health only requires complete disturbance of the plaque biofilm (on all tooth surfaces) once a day. The collection of sub gingival calculus and development of periodontal disease indicates oral hygiene level not achieving disruption of plaque on a daily basis.”
It is important to have regard to the following observations of Dr Nasser – Exhibit 12 p. 97:
“Periodontal disease is dependent upon an individual’s response to the microbial pathogens that are present around the gingival margins of the teeth (1). The microbial pathogens (or bacteria) that are responsible for periodontal disease are present in dental plaque, which is a sticky matrix of food and bacteria that may exist around the teeth and gingival margins. Dental plaque can be removed with regular toothbrushing, but when daily toothbrushing is less than desirable, the mineral ions in the saliva initiate the calcification of the dental plaque to form the hard calculus layer which is largely inorganic in composition.”
In his first report, Dr Nasser made these observations – Exhibit 10 p. 85:
“Poor oral hygiene may be evident by inadequate daily toothbrushing and flossing, and irregular visits to the dentist for examination and cleaning of the teeth. The subsequent accumulation of dental plaque will eventually calcify into hard supragingival and/or subgingival calculus, which will then act as a trap for more dental plaque accumulation; and the destructive periodontal disease cycle will continue until the hard supragingival and/or subgingival calculus is professionally removed, and a daily oral hygiene regime is implemented.”

The Tribunal has been presented with voluminous evidence of the veteran’s state of health from the time he enlisted until the finalisation of his defence service.
Of significance is the report of Dr Selby of 19 September 1984, which was prepared immediately prior to the veteran’s enlistment. Dr Selby ticked “abnormal” in the box dealing with teeth and gums and noted “lower left premolar missing” – Exhibit 1 T5 p. 158.
Shortly after enlisting on 23 October 1984, the veteran’s service dental records disclose “OHI- S/C Prophy (green stain)” – Exhibit 1 T4 p. 16.
It is tolerably clear that prior to the veteran enlisting he was experiencing some dental problems although the veteran claimed in a medical interview of 5 October 1984 that no dentist had until that point of time commented of any unusual condition or problem with his mouth – Exhibit 1 T4 p. 22.
The Dental Clinical Records of the veteran from the period 8 October 1984 until 15 August 1995 disclose numerous dental visits and treatments – Exhibit 1 T4 pp. 16 – 19. This included separate Dentist Specialist Referrals – Exhibit 1 T4 p. 20.
The frequency and nature of service dental interventions on behalf of the veteran disclose that he was able to access, and did receive, adequate, if not superior, dental treatment. The veteran was provided frequent advice on teeth cleaning as well as receiving scale and clean interventions. As previously noted, he was also referred to a periodontal specialist.
The Tribunal’s attention has been drawn to the fact that there is a three-year period between 30 June 1987 and 30 May 1990 where there is no record of the veteran receiving dental treatment – Exhibit 1 T4 p. 17. On 16 May 1991 the veteran was referred to a periodontal specialist.
Dr Nasser was specifically asked whether, in his opinion, the veteran’s defence service in the period 1987 – 1990 may have aggravated his diagnosed conditions. His reply is set out at [79], and he was clearly of the opinion that it was unlikely that the veteran’s service aggravated his diagnosed conditions.
A close perusal of the veteran’s dental records discloses that he was rated as Class 4 upon enlistment, and by 1985 had improved to Class 3. It was not until 21 January 1986 that the veteran achieved a Class 1 dental rating and in the years that followed he was ranked as either Class 1 or Class 2 – Exhibit 1 T4 pp. 16 – 19.
These records suggest that the veteran’s dental condition actually improved after he enlisted, and in the years that followed he was provided professional and consistent dental care and attention. These records further suggest that the veteran’s defence service may actually have substantially improved his dental condition, and, but for his enlistment, his dental condition may have been much worse.
The preponderance of evidence presented to the Tribunal leads to the conclusion that the veteran’s claimed conditions of periodontal disease (which includes the claimed conditions of gingivitis and periodontal abscess) were not contributed to, to a material degree, by his defence service.
In reaching this conclusion, the Tribunal accepts the diagnoses and observations of the CDA and Dr Nasser, and has paid due regard to the veteran’s Dental Clinical Records as produced at Exhibit 1 T4 pp. 16 – 19.
Attention is next given to the claimed condition of subgingival calculus.
It will be recalled that the CDA opined (Exhibit 1 T11 p. 199) that subgingival calculus is not a condition but, rather, a sign of inadequate or incomplete oral hygiene, and did not represent a diagnosis.
In short, the CDA opined that subgingival calculus is not a separate condition and it is therefore not an “injury” for the purposes of s 14 of the Act.
Dr Nasser opined that poor oral hygiene can result in accumulation of dental plaque which eventually calcifies into, inter alia, subgingival calculus, which acts as a trap for more dental plaque accumulation. This, then, leads into the destructive periodontal disease cycle until the subgingival calculus is professionally removed – Exhibit 10 p. 86.
Subgingival calculus is then a precursor to, and also a part of the cycle of, periodontal disease, and not a separate condition.
Based on the dental medical evidence presented to the Tribunal, subgingival calculus is not a separate condition and does not of itself constitute an “injury” for the purposes of the Act.
The next condition to be considered is tooth wear.
The CDA opined that the veteran’s tooth wear, as reported or recorded, was not outside the normal range of wear expected. Further, he also opined that there was no evidence to indicate failure of teeth outside the range of expectation of normal wear of heavily filled teeth – Exhibit 1 T14 p. 206. Accordingly, no diagnosis was recorded by the CDA.
When this condition was considered by the Comcare Delegate she noted that based on the available evidence, dental opinion and mainstream medical literature, diagnostic protocols had not been met to confirm a diagnosis. She also noted that radiographs and reports reflected the veteran’s tooth wear was present, but not outside normal range. Accordingly, she found that no “injury” or “disease” had been established and the veteran’s claim failed – Exhibit 1 T25 p. 251.
Dr Nasser opined that tooth wear could be one of three conditions: bruxism, tooth abrasion or tooth erosion – Exhibit 12 p. 97. However, Dr Nasser also opined that periodontal disease does not cause tooth wear (attrition, abrasion, erosion) – Exhibit 12 p. 98.
The material before the Tribunal does not allow the Tribunal to find that the veteran suffered a compensable injury, namely tooth wear. In this regard, the Tribunal notes the findings of the CDA that the veteran did not experience tooth wear outside the range of normal wear.
Finally, consideration is required of the claimed condition of loss of teeth.
Dr Kara Everingham of the Alstonville Medical Centre in a report of 15 July 2019 diagnosed the veteran as suffering from “Periodontal disease, loss of teeth, bruxism” and made the following comments about the veteran’s teeth – Exhibit 1 T19 p. 213:
“Multiple teeth are missing which were extracted prior to Allan’s presentation at Alstonville Family Dental.”
The veteran’s first reported visit to the Alstonville Medical Centre was 4 August 2014, at which time it was reported that he “would like to do something with the missing teeth, especially on the Left Hand Side…” – Exhibit 1 T19.1 p. 220.
The Tribunal does not have any dental records of treatment the veteran received before he enlisted or in the years after he returned to civilian life until he first attended at the Alstonville Medical Centre.
The veteran’s service dental records disclose that he underwent a tooth root removal procedure on 25 October 1984 very shortly after enlisting and a loss of a crown of tooth prior to enlisting – Exhibit 1 T4 p. 16, T12 p. 202. The dental records do not disclose any other tooth extractions during the veteran’s service.
Dr Nasser opined that loss of teeth may be caused by dental caries (tooth decay), periodontal disease or trauma – Exhibit 12 p. 97.
Assuming that loss of teeth is a separate condition (as opined by Dr Everingham), then there must be evidence that the veteran’s defence service materially contributed to this condition.
There is no evidence that the veteran suffered any trauma to his head, or any other part of his body, whilst rendering service which resulted in any loss of teeth either during the period of his service or after his return to civilian life.
Apart from the tooth root removal weeks after the veteran enlisted, there is no evidence that he underwent any tooth removal procedure during the period of his service.
Dr Nasser opined that tooth loss is a resultant conclusion of advanced periodontal disease – Exhibit 12 p. 98. As the Tribunal has concluded that periodontal disease was not materially contributed to by the veteran’s defence service, any resultant loss of teeth is not a compensable injury.
DECISION
The reviewable decisions of 6 December 2019 are affirmed.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

...................[SGD].................
Associate
Dated: 26 November 2021

Date of hearing: 23 June 2021

Representative for the Respondent: Ms Leisa Pendle,
Australian Government Solicitor

[2021] AATA 4389

26 November 2021

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