Topic and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2019] AATA 1569

Topic and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2019] AATA 1569 (25 June 2019)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2016/6547

Re:Ms Lisa Topic

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Ms Anna Burke AO, Member

Date:25 June 2019

Place:Melbourne

The Tribunal affirms the decision under review.

.........................[sgd]..........................................

Ms Anna Burke AO, Member

CATCHWORDS
VETERANS’ AFFAIRS – whether claimed condition arose out of war-service – Statement of Principles concerning osteoarthritis – whether condition connected with service on the balance of probabilities – claimed condition not service-caused – decision under review affirmed

Legislation

Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

Cases

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Secondary Materials

Statement of Principles concerning osteoarthritis (Balance of Probabilities) (No. 62 of 2017)

REASONS FOR DECISION

Ms Anna Burke AO, Member

25 June 2019

1. Ms Lisa Topic (the Applicant) served in the Australian Army Reserve (the Reserve) for 21 years, initially joining in 1994 at the age of 35, later reaching the rank of Corporal. Ms Topic originally undertook basic training at Puckapunyal, did not deploy overseas, and during the majority of her service in the Reserve worked in recruitment. In addition to her service in the Reserve, Ms Topic has raised three children as a single mother, provided support for ageing parents and worked full-time, initially at the Commonwealth Employment Centre and then in a civilian role in Customs as a Border Force Officer. In 2014 whilst in Bali, Ms Topic fell fracturing both wrists, which required surgery. Subsequent to the fall she had a considerable time away from work and became inactive in the Reserve. Ms Topic is retired and was medically discharged from the Reserve in 2015.

2. Ms Topic lodged a claim with the Department of Veterans’ Affairs (DVA) for liability for an injury or disease arising from her service. This application, lodged on 1 May 2014, was completed with the assistance of an advocate from the Returned and Services League (RSL), and cited a right knee injury.  Ms Topic lodged another claim with the DVA for liability for an injury or disease arising from her service on 28 August 2014, again completed with the assistance of an advocate from the RSL, citing thoracic spine damage.

3. On 3 October 2014 a delegate of the Military Rehabilitation and Compensation Commission (the Commission) rejected Ms Topic’s claim for liability for osteoarthritis of the right knee, thoracic spondylosis and thoracic scoliosis. The delegate found the conditions did not meet the requirements under section 333 of the Military Rehabilitation and Compensation Act 2004 (the MRC Act).

4. On 25 August 2016 the Veterans’ Review Board (VRB) affirmed the Commission’s determination to refuse liability for Ms Topic’s conditions of osteoarthritis of the right knee, thoracic spondylosis and thoracic scoliosis. The VRB determination stated:

   [in respect of osteoarthritis right knee]

   The claimant gave evidence as to work performed by her as a member of the Army reserves which involved kneeling and squatting. The material indicated that she worked about 112.5 days per annum on average over a period of two years before the clinical onset of the condition. However while the claimant’s work may have involved her in kneeling or squatting on regular occasions, having regard to the claimant’s evidence, the board could not be reasonably satisfied that she engaged in those activities to an extent that would meet the requirements of the statement of principles.

   Indeed the board considered that as the claimant was working on a part time basis, for about 112.5 days out of an average of about 200 days for full-time service personnel, it could not be said that she was working on more days than not … over a continuous period of at least two years as required by the statement of principles.

   …

   [in respect of thoracic spondylosis]

   In this case, the difficulty for the board is that while the evidence points to the claimant sometimes lifting or carrying weight in excess of 35 kg, the board could not be reasonably satisfied, having regard to the evidence that the claimant regularly lifted or carried loads in excess of 35 kilograms. ….

   … The board is therefore reasonably satisfied that the material before it does not raise a connection between the claimant’s thoracic spondylosis and the relevant service as required by the MRCA.

   …

   [in respect of thoracic scoliosis]

   The DMO noted: most scoliosis is idiopathic. It is unlikely to be related to service. There is no medical evidence before the board that suggests that different conclusion.

5. On 2 December 2016 Ms Topic lodged an application with the Administrative Appeals Tribunal (AAT) for a review of the VRB determination, stating: I believe that I have not been given fair consideration in relation to my claim. My representative was also lacking in preparation and support.

6. At the hearing of this matter, Ms Topic was self-represented and the Commission was represented by Ms Nicky McGowan, Senior Executive Lawyer, Australian Government Solicitor. The Tribunal was provided with documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). Both parties tendered further documentation and reports during the course of the hearing. Ms Topic and Dr Jennifer Flynn, consultant orthopaedic surgeon, gave evidence and were cross-examined at the hearing.

7. At the commencement of the hearing, Ms Topic indicated that she was no longer seeking to press her claim in respect of thoracic spondylosis and thoracic scoliosis, limiting her claim to her knee condition. The hearing proceeded on the  consideration of Ms Topic’s original claim in respect of osteoarthritis of the right knee.

8. Ms Topic presented as a  credible witness who had passionately served her country as an army reservist, whilst also working full time, raising 3 children as a single mother and caring for her elderly and ill parents.  The Tribunal wishes to commend Ms Topic on her dedication and willingness to perform her duty. This decision does not reflect in any way on her integrity or credibility.

   ISSUE FOR THE TRIBUNAL

9. The issue to be determined by the Tribunal is whether the the claimed condition of osteoarthritis of the right knee arose out of Ms Topic’s service.

   LEGISLATIVE AND POLICY BACKGROUND

10. Section 23 of the MRC Act outlines when the Commission must accept liability for service injuries and diseases:

    (1)The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:

    (a)  the person's injury or disease is a service injury or disease under section 27; and

    (b)  the Commission is not prevented from accepting liability for the injury or disease by Part 4; and

    (c)  a claim for acceptance of liability for the injury or disease has been made under section 319.

    Note 1: The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non-warlike service.

    Note 2: The standard of proof mentioned in subsection 335(3) applies to the following:

    (a)  claims that the injury or disease is a service injury or disease that relates to peacetime service;

    (b)  all claims when determining whether a person sustained a particular injury or contracted a particular disease;

    (c)  all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.

11. Section 335 of the MRC Act establishes the standard of proof for claims relating to peacetime service:

    (3)Except in making a determination to which subsection (1) applies, the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.

    Note: This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 339.

12. Section 339 of the MRC Act establishes the reasonableness of hypotheses to be assessed by reference to Statement of Principles:

    (1)This section applies to a claim under section 319 for acceptance of liability under subsection 23(1) or 24(1) for an injury, disease or death that relates to peacetime service.

    Note: Subsection 335(3) is relevant to these claims.

    (2)If the Repatriation Medical Authority has given notice under section 196G of the Veterans' Entitlements Act 1986 that it intends to carry out an investigation in respect of a particular kind of injury, disease or death:

    (a)  the Commission is not to determine a claim for acceptance of liability for a person's injury, disease or death of that kind; and

    (b)  the Commission, the Board or the Tribunal is not to make a decision on the review of:

    (i)a determination by the Commission on such a claim; or

    (ii)such a determination as previously affirmed or varied; or

    (iii)a decision made on a previous review in substitution for a determination referred to in subparagraph (i) or (ii);

    unless or until the Authority:

    (c) has determined a Statement of Principles under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986 in respect of that kind of injury, disease or death; or

    (d)  has declared that it does not propose to determine such a Statement of Principles.

    (3)In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:

    (a)  the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and

    (b)  there is in force:

    (i)A Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or

    (ii)A determination of the Commission under subsection 340(3) of this Act); and

    (c)  the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

13. The Tribunal, in applying the balance of probabilities standard of proof, is required to do so in accordance with any Statement of Principles (SoP) made pursuant to section 196B(3) of the Veterans’ Entitlements Act 1986. The original SoP considered by the VRB was instrument no. 14 of 2010, which has since been revoked and replaced by Statement of Principles concerning osteoarthritis (Balance of Probabilities) (No. 62 of 2017), which is now the applicable SoP in this matter. Relevantly, the SoP includes:

    7         Kind of injury, disease or death

    (1) This Statement of Principles is about osteoarthritis and death from osteoarthritis.

    Meaning of osteoarthritis

    (2) For the purposes of this Statement of Principles, osteoarthritis means a degenerative joint disorder with:

    (a) clinical manifestations of pain, impaired function and stiffness; and

    (b) radiological, other imaging or arthroscopic evidence of loss of articular cartilage or osteophytes; and

    (c) excludes acute articular cartilage tear and osteochondritis dissecans.

    …

    9        Factors that must exist

    At least one of the following factors must exist before it can be said that, on the balance of probabilities, osteoarthritis or death from osteoarthritis is connected with the circumstances of a person's relevant service:

    (1)     having inflammatory joint disease as specified, of the affected joint before the clinical onset of osteoarthritis in that joint;

    Note: inflammatory joint disease as specified is defined in the Schedule 1 - Dictionary.

    (6)     having trauma to the affected joint within the 25 years before the clinical onset of osteoarthritis in that joint;

    Note: trauma to the affected joint is defined in the Schedule 1 - Dictionary.

    (7)     having an acute articular cartilage tear of the affected joint within the 25 years before the clinical onset of osteoarthritis in that joint;

    (8)     having an acute meniscal tear of the affected knee within the 25 years before the clinical onset of osteoarthritis in that joint;

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

    Note: disordered joint mechanics is defined in the Schedule 1 - Dictionary.

    …

    (16)   for osteoarthritis of a hip or knee joint only:

    (a)      kneeling or squatting for a cumulative period of at least one hour per day, on more days than not, for a continuous period of at least two years before the clinical onset of osteoarthritis in that joint; and

    (b)     where the clinical onset of osteoarthritis in that joint occurs within the 25 years following that period;

    (17)   for osteoarthritis of a knee joint only, having internal derangement of the affected joint before the clinical onset of osteoarthritis in that joint;

    …

    10      Relationship to service

    (1)     The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.

    THE TRIBUNAL’S CONSIDERATION AND FINDINGS

    Evidence before the Tribunal

    Medical

    MRI

14. Ms Topic’s was referred for an MRI of her right knee on 21 March 2019. In the subsequent report Doctor A Agahi, radiologist, opined:

    Appearances are consistent with severe medial femorotibial joint compartment osteoarthritis. Moderate lateral femorotibial and patellofemoral joint osteoarthritic changes.

    Grade 4 chondromalacia of medial femoral condyle and medial tibial plateau.

    Horizontal tear of posterior horn of medial meniscus on background of mucoid degeneration noted.

    Horizontal tear of anterior horn of the lateral meniscus with closely associated parameniscal cyst seen.

    Moderate size ganglion cyst at the level of knee joint at the anterior aspect of the lateral head of gastrocnemius muscle. Moderate knee joint effusion

    Further orthopaedic opinion is recommended.

    Doctor Jennifer Flynn, consultant orthopaedic surgeon

15. Dr Jennifer Flynn provided a medico-legal report to the Tribunal and gave evidence at the hearing. In her report dated 9 June 2017 she opined that:

    The lower limbs were examined. There was swelling about the anterior aspect of the right knee with a small effusion. She had normal alignment, was non-tender and had normal ligamentous examination.

    X-ray – Right Knee (2 October 2011): there is decreased joint space medially as well as osteophyte formation

    MRI – right knee (15 February 2014): MRI was examined and demonstrated medial compartment osteoarthritis and a medial meniscal tear.

    …

    Examining Statement of Principles Ms Topic satisfies the requirements 3B1 clinical manifestation of pain, impairment function and stiffness and 3B2 radiological evidence of loss of articular cartilage or osteophytes.

    …

    Referencing the statement of principles I am unable to identify any factors that are applicable to Ms Topic that are service related.

16. At the outset of her evidence Dr Flynn stated that she had conducted her review under the original SoP, no. 14 of 2010, but has subsequently been provided with the new SoP no. 62 of 2017, which had not altered her view or her subsequent report.

17. She advised at the hearing that she had taken a detailed history from Ms Topic at examination and could not identify any factors that would be relevant to the applicable SoP. In particular, when discussing the squatting and kneeling criteria of one hour for more days than not, she concluded Ms Topic did not meet that criterion. She advised the hearing that, in her professional experience, individuals who developed osteoarthritis as a result of their work were individuals who combine squatting and kneeling with physical work such as construction workers, carpenters, tilers or coalminers. She went on to state that osteoarthritis presents in people who are overweight or who have suffered a major trauma, and that it wasn’t common for someone undertaking office work or light physical work to present with such a condition.

18. Dr Flynn agreed with Ms Topic’s contention that the condition of osteoarthritis can take years to manifest after an injury. She agreed that an injury to the knee and constant pressure on the joint can be cumulative, resulting in a final diagnosis of osteoarthritis.

19. Dr Flynn also advised the hearing that osteoarthritis can be the result of an injury or degeneration, observing that you commonly see a degenerative tear becoming symptomatic when there is a twist or pressure on the joint which then degenerates through the ageing process. He stated that it would not be uncommon to see such a presentation in a woman of Ms Topic’s age.

    Medical records

20. The Tribunal had the benefit of the clinical notes/records of Doctor S H Yassa, General Practitioner, which relevantly included:

    ·4 January 2011: New Year’s Eve injury to the right knee, no past history: of advanced arthritis or major injuries. was rushing at home and felt a cluck in the knee. No abnormal movement of the knee. Examination musculoskeletal: Knee: moderate effusion, Mild Apley’s test, Full ROM active and passive. No cruciate or collateral ligament injury. Advised against the need for any radiological investigation at this stage.

    ·28 January 2011: one month of right knee pain, sudden onset when walking, right knee palpable crepitus, tender over lateral line, swollen

    ·10 March 2011: right knee still swollen

    ·11 April 2011: may need MRI if knee not better after local steroid

    ·13 December 2013: letter of referral to Doctor Alex Stockman, rheumatologist, requesting assessment, opinion and management of Ms Topic as she has presented with chronic right knee pain and requires further management.

    ·13 December 2013: ongoing right knee pain, was seen by Dr Stockman, advice to have aspiration and anthroscoph at the time, if not better to go for MRI, right knee mildly warm and swollen.

21. The Tribunal also received into evidence two letters  from Dr Alex Stockman, rheumatologist, to Dr Yassa

    ·31 March 2011: Since the beginning of this year she also had pain and some swelling in the right knee. It commenced suddenly with a crack when she was walking.
    …
    Examination
    … She had moderate effusion in the right knee with mild fixed flexion deformity. There was slight pain on movement of the knee.
    Investigation
    I reviewed recent x-ray of the right knee which showed slight narrowing of the medial compartment.
    …
    Diagnosis and Management
    … She has an effusion in the right knee which is likely to be due to osteoarthritis. I have sent her to i-rad to have the knee aspirated and injected with steroids. If the symptoms persist she may need an MRI scan to exclude internal derangement.

    ·5 February 2014: … Unfortunately the right knee continues to worry her and is aggravated by weight bearing. The pain is rather diffuse and there is some swelling, but she claims that it is less than previous. Because of this pain Lisa feels she can no longer continue in Army Reserve. She is already on modified duties which preclude her from lifting weights or walking a long distance... On examination her gait was normal. She had mild to moderate effusion in the right knee, full flexion gave her discomfort and there was slight lateral instability. There was diffuse tenderness over the joint-line. I have now referred Lisa for an MRI scan of the knee to assess the degree of osteoarthritis and to see whether there are any structural abnormalities that may be corrected with arthroscopy.

1. Notes from Ms Topic’s ADF annual health assessment/medical employment classification review records were also in evidence, relevantly, they included:

   ·17 May 2011 notes ‘pass BFA [basic fitness assessment]fit and well’

   ·17 November 2011: in answer to the question: Do you have any persistent muscular pain or weakness?’ Ms Topic answered yes, commenting ‘knee/pain since early 2011, wear and tear no injury? Osteoarthritis’; clinical examination comments note ‘osteoarthritis of the right knee cannot pass a BFA walk or run at the moment’,

   ·December 2011: this Reserve member says that her osteoarthritis of the knee is currently preventing her from walking far eg BFA, and she is unable to run. She will provide an MRI scan report her GP has. She has been on holidays in Europe in recent months and will now be able to have some physiotherapy that could improve her mobility. Her BMI is just 30 and weight loss is underway… Her condition can be monitored for the six months as MEC J31.

   ·21 June 2013: OA - R knee, 2011 onset of R knee pain. Gradual onset, and become physically limiting for the patient. She went to her own civilian GP first and had a MRI scan done. Was told the pain was related to OA – right knee. She did not have any physiotherapy. She did not have a specialist for this reason. As such, the patient was downgraded that year – 18/11/2011. This issue lingered until now. The pain is not as bad as 2011, but still restrictive. Pain is particularly worse in cold weather. The patient had not had any BFA assessment recently. She is limited to PT at own pace. Walk instead of run.

   ·A workplace disability report of 21 June 2013 notes ‘CPL Topics duties are of a clerical. The duties consist of routine filing, computer work, minimal manual handling of documents, files etc. A lot of CPL Topic’s current duties are performed in front of a computer’ … CPL Topic is capable of carrying out her normal duties … There should be no reason for CPL Topic not participate in general military activities.

   Ms Topic

2. Ms Topic advised the Tribunal that she had been a member of the Australian Defence Force (ADF) for 20 years and had been exposed to the hardships that go along with the work, stating that her knee pain was cumulative  from exposure to different stresses. She stated that when she was exposed to these hardships/stressors she did not react immediately and thought they would pass in time, so she carried on; as she did not want to put herself in a position where she would be downgraded medically and lose her job within the Reserve. She had calculated the time she had served with the ADF would be the equivalent to seven years full-time service, indicating the ADF is not the Girl Guides and that it was very involved. She explained to the Tribunal that she took immense pride in her time with the Reserve, had contributed well and would have liked to have gone on to retire with 20 years’ service but sadly was medically discharged as she was unable to hold a firearm following a fall in Bali in which she broke both  wrists.

3. Ms Topic stated that during her time with the Reserve she had predominantly worked in recruitment.  She explained that an average day would entail attending enlistment days where there would be on average 30 to 40 recruits; that her role was to obtain medical files on each recruit, place the file in her car, drive them to the barracks and then file them in a filing cabinet in preparation for the applicant’s recruitment course. She would check all the paperwork, this would often involve squatting and bending down to the files to be stored in old-style upright drawer filing cabinets and on average they would have about 100 files to prepare. During these days she would arrive at about 8 or 9 in the morning as the recruits went through their process, which would be three or four hours, and then would drive the files to the barracks. Whilst waiting she would talk to the recruits and their parents, answering questions about the next steps in the recruitment process.

4. In addition to this, she would attend numerous career expos and other events for which they would take the recruitment van. On these days she would have to fit out the recruitment van, stocking it with pamphlets, checking the generator, etc.  She described it as an elaborate set up; some of it was mechanical and some of it involved utilising steps and carrying heavy equipment. She, with others, would then spend the day discussing issues with recruits and at the end of the day they would have to clean up and stack everything away.

5. In addition to her work in recruitment she also had to maintain her fitness which was measured through BFA and was involved in various team building and training exercises. Ms Topic maintained that this ongoing military training, such as pack marches, obstacle and adventure training, resulted in physical trauma. She recalled that during one of these exercises, the ‘Central Tracker’, which took place in Central Australia during August-September 2005, she was exposed to arduous conditions. She stated that she was unprepared, as an army reservist, to undertake this trek, as one day she had been working in an administration role and the next she was tracking 25 km in extreme heat.  She felt she was placed in an untenable situation where she was struggling to juggle her various jobs and simply did not have time to maintain the fitness level required to cope with this kind of arduous training and went in under-prepared for this training exercise.

6. Ms Topic told the hearing that, during the Central Tracker exercise, she had required assistance from the medic in bandaging her knees, as she was in considerable pain during the exercise. Ms Topic acknowledged that there was no incident report or complaint of knee soreness on her medical records in relation to the Central Tracker incident and that she had sought, unsuccessfully, to find any records in relation to this incident.

7. Ms Topic indicated to the Tribunal that, during her time in the Reserve, she had not raised any issues in respect of any injuries, as she felt this would have had a negative impact on her ADF service.

8. In an email addressed to the to the Minister for Defence dated 15 January 2019 and submitted by Ms Topic for consideration of her claim, she states:

   During my time in the ADF, when you are younger, fitter and keen to serve your country, I never thought that the recruit/promotional courses, fitness tests, team building, various training et cetera, would eventually catch up with me in my 50s and that I would suffer the effects of the past experiences.

   I now struggle with my everyday living due to constant pain in my knee which also affects my lower back as I am overcompensating by leaning more on the left side which causes other issues.

   I have constant need of osteopath and chiropractor in order to get from day to day. This all costs money which I will not be able to afford once I stop work in a few weeks. My health also affects my current job, hence I have decided to retire earlier than planned.

   Trying to prove that my knee/back issues were contributed by my Defence Force service is causing psychological stress as I feel that it should not be this difficult. I do not believe that former soldiers should resort to lying in order to get assistance

   The reasons why I did not report my not so obvious injuries is that you assume that they are temporary and once the pain becomes chronic, you don’t say anything because you do not want to risk being medically downgraded and getting discharged from the ADF. This ultimately happened to me after 20 years of devoted service as I was medically discharged without the usual send off. If I was one of those people the reported all my medical issues to the Army medical staff, I would have had a favourable case because it would have been on my service records.

9. Ms Topic advised the hearing that the most significant factor in pursuing her claim for military compensation was the fact that her knee injury had contributed to a significant accident she suffered in March 2014 whilst on holiday in Bali. In that incident, she felt her right knee give way underneath her, causing her to lose her balance, fall sideways from a 3 meter height, and fracture both her wrists. Subsequent to the fall, she has required three operations, significant time off work and suffered financial hardship. She believed her knee condition was related to her service in the ADF and the fall in Bali triggered her application to seek compensation, as her knee condition has not gone away, but gotten worse, and now requires significant, costly, medical treatment.

10. Ms McGowan put to Ms Topic that the onset of her knee condition was July 2011 when she first consulted her civilian general practitioner in relation to knee pain. Ms Topic confirmed that she believed clinical onset was 2011.

11. Ms McGowan put to Ms Topic that there was no incident report or complaint in respect of right knee pain in any of her military medical records, including in relation to the Central Tracker exercise. Ms Topic agreed this was the case.

12. Ms McGowan took Ms Topic to numerous clinical file notes summonsed from her treating general practitioners at the Western Family Medical Centre (from December 2006 until May 2008) and then at St Mary’s Medical Clinic (from July 2007 until April 2014). Ms McGowan put it to Ms Topic that there was no mention of a knee injury to her civilian general practitioner’s prior to 2011. Ms Topic said she was not sure if she’d ever complained to the doctor after the Central Tracker exercise, believing she had no issue as there was nothing broken. She stated that at no stage had she been unable to attend her paid employment because of knee pain at that point in time.

13. Ms McGowan put it to Ms Topic that the first consultation with her general practitioner in respect of knee pain was after a fall on New Year’s Eve in 2011. Ms Topic again indicated that she had not complained about her injuries considering they would pass, that they were a natural part of ageing, but now she was experiencing the after effects of physical stress sustained during her long period of ADF service and believed her knee condition was directly related to her service.

    Consideration

14. There is no dispute that Ms Topic has rendered relevant service with the Army Reserve for many years, is suffering from osteoarthritis of the right knee, and that the relevant SoP for osteoarthritis of the right knee is the SoP concerning osteoarthritis (Balance of Probabilities) (No. 62 of 2017). Additionally, both parties acknowledge that, in accordance with section 337 of the MRC Act, there is no onus of proof required of any party.

15. However, the parties dispute that the Ms Topic’s osteoarthritis of the right knee is related to her service.

16. Ms Topic acknowledges that everything hinges on the evidence which links her injury to her service and acknowledged she could not provide any corroborating evidence. However, she noted that the medical fitness advice noted employment restrictions including not for “BFA testing, PT at own pace and no running”, arguing there was no information as to why she had not been required to undertake compulsory fitness assessment.

17. Ms Topic contended that she had suffered an injury to her right knee whilst undertaking the Central Tracker exercise and her defence job involved work that did require her to kneel and squat at least one hour per day more days than not. That her defence job included weapons training and maintaining her fitness, had placed stresses on her body and which had cumulatively impacted her physical well-being, most particularly her knee and back. She stated that she had never intended to utilise the system to her advantage, had not taken notes of every incident or reported them as she was not in it for financial gain, but was doing the job she loved, serving her country in a role she had hoped she would be able to pursue until retirement. Ms Topic contended that DVA should provide her with a Veteran’s Card so that she could undergo necessary knee surgery, as she had no ability to personally fund such medical costs.

18. The respondent contended that none of the factors set out in the relevant SoP are satisfied, arguing the Tribunal cannot be reasonably satisfied, for the purposes of section 335 of the Act, that there is a causal connection between Ms Topic’s peacetime service and claimed condition of osteoarthritis of the right knee. The respondent relied upon Dr Flynn’s evidence, which, it contended, clearly indicated that Ms Topic did not satisfy any of the factors in the relevant SoP.

19. The respondent argued the appropriate date for clinical onset was the finding of the right knee x-ray performed on 10 February 2011, and that there was no medical evidence of the condition prior to this date.

20. The respondent argued that there were no medical records or incident reports to indicate any trauma or tear to Ms Topic’s right knee sustained during her service with the ADF. The respondent indicated that there was no evidence of Ms Topic reporting any right knee complaints prior to 2011.

21. The respondent contended that, whilst Ms Topic may have been reluctant to report any incidents or complaints of knee pain to Army medical personnel for fear of jeopardising her position within the ADF, this had not prevented her from speaking to her civilian treaters. The respondent argued there were no clinical records from general practitioners or specialists from whom Ms Topic had sought treatment, which indicated that she had , at any stage, provided a history of right knee concerns arising from her ADF service.

22. The respondent argued that there was no evidence that supported a finding that Ms Topic’s role within the Reserve required her to be “kneeling or squatting for a cumulative period of at least one hour per day, on more days than not, for a continuous period of at least two years before the clinical onset of osteoarthritis in that joint”.

23. Having considered the material before it, the Tribunal is not satisfied, on the balance of probabilities, that Ms Topic’s osteoarthritis of the right knee is related to her defence service. The material submitted indicates the onset of the condition was February 2011 when an x-ray of the right knee indicated signs of degenerative change. The material submitted does not indicate that Ms Topic suffered an injury to her right knee during her defence service.

24. Furthermore, the material before the Tribunal did not indicate that Ms Topic’s predominantly clerical work within the recruitment section required her to be kneeling or squatting to the degree required by the SoP. Ms Topic contended that, on her calculation, she had rendered the equivalent of seven years full-time in her reservist role, was fairly involved, putting enormous stress and pressure on her body. However the Tribunal found it cannot be said that her defence service required her to knell for an hour on more days than not for a continuous period of at least two years as required by the SoP.

    CONCLUSION

25. Taking the evidence into account, the Tribunal is not satisfied, on the balance of probabilities, that Ms Topic’s condition of right knee osteoarthritis is connected with her defence service. In coming to this conclusion, the Tribunal was mindful of and applied the reasoning of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362:

    when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found … reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

    DECISION

26. It follows that the Tribunal affirms the decision under review.

48.     I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.

.......................[sgd]..........................

Associate

Dated: 25 June 2019

Date of hearing:	14 May 2019
Applicant:	Self-represented
Advocate for the Respondent:	Ms Nicky McGowan
Solicitors for the Respondent:	Australian Government Solicitor