Watts and Military Rehabilitation and Compensation Commission
[2008] AATA 597
•10 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 597
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2006/1377
GENERAL ADMINISTRATIVE DIVISION ) Re IAN WATTS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr I Alexander, Member Date10 July 2008
PlaceSydney
Decision The decision under review is affirmed. ..................[sgd]............................
Dr I Alexander
Member
CATCHWORDS
COMPENSATION – psoriatic arthritis – psoriatic arthropathy – disease – aggravation – acceleration – whether employment contributed in a material degree – decision under review is affirmed
Safety, Rehabilitation and Compensation Act 1988 – ss 4, 14
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Darling Island Stevedoring and Lighterage Co. Ltd v Hankinson (1967) 117 CLR 19
Holt v Comcare (2003) 130 FCR 576
Martin v Australia Postal Corp (1999) 29 AAR 420
Comcare v Sahu-Khan (2007)156 FCR 536
REASONS FOR DECISION
10 July 2008 Dr I Alexander, Member INTRODUCTION
1. Mr Watts served in the Royal Australian Navy (RAN) from October 2000 until he was discharged on medical grounds in April 2006.
2. In May 2004 Mr Watts was diagnosed as suffering from psoriatic arthritis, alternatively called psoriatic arthropathy.
3. In December 2005 Mr Watts submitted a claim for compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of psoriatic arthropathy. At first instance the liability for temporary aggravation of the condition was accepted (although not for permanent impairment), but on 4 September 2006 after reconsideration this decision was revoked with a determination that liability for compensation in respect of the condition of psoriatic arthropathy was not accepted.
4. Mr Watts sought review of this decision by the Administrative Appeals Tribunal (“the Tribunal”).
ISSUES
5. To qualify for compensation Mr Watts must have suffered an injury that has resulted in “death, incapacity for work or impairment” [s 14(1) of the Act].
6. At the time of the claim s 4 of the Act defined an “injury” to mean:
(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 …
7. For the purposes of the Act s 4 defined ”disease” to mean:
(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 ...
8. Section 4 of the Act defined “aggravation” to include ”acceleration or recurrence”.
9. It is not disputed that Mr Watts suffers from moderately severe psoriatic arthropathy and that from time to time this condition has caused incapacity for work and impairment.
10. It is also not disputed that the onset of the condition occurred while Mr Watts was serving in the RAN and is a disease within the meaning of the Act.
11. The only issue in dispute is whether Mr Watts’ employment contributed to the psoriatic arthropathy or, alternatively, to an aggravation of the psoriatic arthropathy in a material degree.
Mr Watts’ Evidence
12. In a statement dated 22 December 2005 (date stamped received by the Department of Veterans’ Affairs on 21 December 2005) Mr Watts claimed that from October 2002 to May 2003 he suffered pain in his right foot, and that when he reported this to his supervisors and the doctor on board his ship, HMAS Anzac, he was told to wear soft shoes to alleviate the pain, but not given any treatment.
13. I note that service records indicate that from 8 November 2002 to 19 April 2003 Mr Watts served in the Persian Gulf on Operation Slipper and remained posted on the Anzac until he was transferred to HMAS Cerberus on 29 June 2003.
14. Mr Watts claimed that when the ship docked in Dubai he was taken to a doctor on shore where following an x-ray of his foot he was told that “it wasn’t to [sic] bad” and that he could continue to work.
15. Mr Watts claimed that he continued to work with pain for weeks after leaving Dubai, and that during a 3-4 week shutdown period, when his ship was along side fleet base HMAS Stirling, he saw doctors at the HMAS Stirling hospital on several occasions and was given anti-inflammatory pills so that he could continue to work, but did have some days off on sick leave due to the pain.
16. Mr Watts stated that he had been unable to locate any documents with reference to his medical consultations in Dubai or on HMAS Stirling.
17. Mr Watts claimed that in June 2003 he was transferred to the HMAS Cerberus to do a patrol boat course and that during the course he was unable to run or participate in sports because of his “injury”.
18. I note that service records indicate that Mr Watts was transferred to HMAS Cerberus on the 29 June 2003 and that he was, in fact, on annual and war service leave from 21 April 2003 to 5 June 2003 and from 16 June 2003 to 30 June 2003.
19. Mr Watts’ statement referred to his having an MRI scan in January 2004, in Darwin, that was reported as showing a partial Achilles tendon tear and Mr Baddeley, orthopaedic surgeon, recommended steroid injection and rest.
20. In February 2004, after having been transferred to Sydney, Mr Watts was reviewed by Dr Lam, orthopaedic surgeon, who subsequently referred him to Dr Whittaker, consultant rheumatologist. It was Dr Whittaker who diagnosed Mr Watts as suffering psoriatic arthritis in May 2004.
21. Thereafter Mr Watts stated that his condition continued to progress and spread to other parts of the body such that he required additional treatment with corticosteroids and methotrexate.
22. A subsequent statement dated 15 January 2007 was almost identical to the first statement and provided no additional relevant information apart from the fact that Mr Watts was discharged from the Navy in April 2006 on medical grounds.
23. In his oral evidence before the Tribunal, Mr Watts claimed that in either April or May 2003 he suffered pain in his right foot for the first time following an incident where he had jumped from a cargo carrying dhow into a dinghy. His recollection was that the pain was extreme, but restricted only to the ball of his right foot. He claimed that he reported the incident to the doctor on board the HMAS Anzac, but was unable to recall any treatment other than being allowed to wear softer shoes.
24. Although Mr Watts’ recollection as to the time of the incident was uncertain, he did recall that about three to four weeks after the incident, when the Anzac pulled into port in either Dubai or Bahrain, he was seen by a doctor on shore. Following an x-ray of his foot that did not show any fracture he was treated with oral anti-inflammatory medication.
25. Mr Watts stated that he had continued on full duties from the time of the incident, but did suffer pain in his right foot until he took his first dose of anti-inflammatory medication which relieved his pain within about one hour so that he “could hardly feel it”. Thereafter he continued working for several weeks until he went on annual leave.
26. Following his return to Australia Mr Watts claimed that despite continuing medication he continued to suffer pain in his right foot, and subsequently in other parts of the body. He recalled seeing several doctors, having numerous investigations and being treated with various medications.
27. In the course of re-examination, Mr Watts indicated the he was “getting mixed up with dates“ but that the incident with his foot had occurred during Operation Slipper and that he had seen the doctor in Bahrain near the end of the operation, that is, around 19 April 2003.
28. I note that in the course of Mr Watts’ oral evidence it became clear to the Tribunal that his recollection of the particulars surrounding the events from November 2002 to May 2003 was uncertain, he was at times confused and that he required significant prompting by Counsel.
DOCUMENTARY EVIDENCE
Outpatient Clinical Records
29. An entry in the outpatient clinical records dated 3 September 2002 noted Mr Watts presented with a painful left knee following trauma. The incident occurred while Mr Watts was on the HMAS Anzac, and he conceded in his oral evidence that this injury was not related to his current claim. I note, however, that the injury was to be reviewed with an x-ray three days later at “Stirling” and that there was no available record of this review.
30. I note the absence of any entries in the outpatient record until the next entry on the same page dated 20 May 2003 with a note indicating that Mr Watts had a three week history of right forefoot pain not settling with “diclofenac”, a non steroidal oral anti-inflammatory medication (NSAID). The medical officer at that time diagnosed extensive ”tinea” of the right foot with secondary infection, right Morton’s neuroma and right plantar fasciitis and recommended antibiotics, continuation of diclofenac and referral to a podiatrist. If this entry were to be accepted as indicating the onset of Mr Watts’ disease then his disease in fact developed while he was on annual leave.
31. Also I note that Mr Watts was already taking diclofenac prior to being seen on the 20 May 2003 which would suggest that this medication had been prescribed for him prior to this date.
32. The next entry dated 11 June 2003 noted painful ”feet” with walking and treatment with a different NSAID recommended. On the following day an entry noted that there had been improvement with the medication, but that standing was still very painful and Mr Watts was declared unfit for duty until 16 June 2003, at which time he again went on two weeks annual leave. I note that on this occasion there was no reference to a specific injury to the right foot and, in fact, no specific reference to the right foot at all.
33. The next entry, dated 29 July 2003, noted a three month history of pain, initially in the heel of the left foot, and then two weeks later in the right forefoot. Examination revealed a tender left heel and swollen right forefoot. Left plantar fasciitis and right forefoot arthritis with diagnosed with the possibility of gout being considered. Treatment was again changed to a different NSAID.
34. A Medical Employment Classification Review Record dated 6 August 2003 noted a three month history of left heel pain and two month history of right forefoot pain.
35. On 19 August 2003 an entry noted that the left heel and right forefoot pain had improved and that Mr Watts was able to perform general tasks, but no running.
36. The next relevant entry was on the 24 November 2003 when Mr Watts presented with right calf pain, difficulty with plantar flexion while weight bearing and pain and tenderness in the ball of the right foot.
37. The report of an ultrasound examination dated 28 November 2003 noted no abnormality of the Achilles tendon, but bilateral calcaneal bursae, left greater than right, and a hypoechoic area between the 3rd and 4th interspace at the metatarsal head consistent with a Morton’s neuroma.
38. The report of an MRI scan of the right lower limb, dated 12 December 2003, noted a probable intrasubstance tear at the medial aspect of the right Achilles tendon with adjacent oedema and retro-calcaneal bursitis and odema surrounding the neck and head of the fourth metatarsal with a distended bursa between the third and fourth metatarsal heads.
39. In a letter dated 15 January 2004, Mr Baddeley, orthopaedic surgeon, noted that Mr Watts presented with an eight month history of severe right Achilles tendonitis, as a result of repetitive high impact loading jumping from ship to ship, diagnosed right retro-calcaneal bursitis and recommended a steroid injection.
40. I note that neither Mr Watts’ evidence nor the contemporaneous clinical records support an eight month history of severe right Achilles tendonitis.
41. A steroid injection scheduled for 19 February 2004 was postponed until 3 March 2004 after Mr Watts was relocated from Darwin to Sydney. At the time of the injection Mr Watts’ scans were reviewed, and the possibility of an underlying inflammatory arthropathy was raised. In particular, it was noted that the MRI did not support a diagnosis of Morton’s neuroma, and that the current ultrasound examination showed no evidence of an Achilles tendon tear, but moderate Achilles insertional tendonitis.
42. Dr Lam, orthopaedic surgeon, reviewed Mr Watts in March 2004. After noting the findings on the MRI scan Dr Lam also suggested a possible underlying inflammatory arthropathy and recommended review by a rheumatologist.
43. In a report dated 11 May 2004 Dr Whittaker, consultant rheumatologist, diagnosed psoriatic arthritis. He noted that Mr Watts had presented in May 2003 with right Achilles tendonitis and retro-calcaneal bursitis when he was based in Darwin. I note that this history was again not consistent with Mr Watts’ own evidence or with the contemporaneous clinical records.
44. Dr Whittaker noted that Mr Watts’ symptoms fluctuated spontaneously, but that his joints had improved considerably over the previous few months, that the steroid injection had considerably reduced symptoms, but that he was still troubled by right heel and forefoot pain and swelling.
45. Dr Whittaker noted that inflammatory parameters were moderately elevated in July 2003, but that the parameters had trended to normal since then. He recommended continuing treatment with NSAID on a regular basis, tendon stretching exercise and a dermatological review.
46. Mr Watts’ condition improved such that on 16 September 2004 on outpatient review it was noted that he only had pain if walking most of the day or after a long run or game of a squash.
47. In December 2004 Mr Watts suffered a flare-up of his condition while off his NSAID medication. He had symptoms in the right lower limb and right hand. NSAID medication was recommenced.
48. In a report dated 7 June 2005 Dr Whittaker noted that Mr Watts had suffered a polyarticular flare-up in April 2005 and that treatment with short courses of NSAID and prednisone had been unhelpful. On examination he found inflammation in various tendon groups and generalised synovitis. An increased regular dose of NSAID was recommended.
49. On 20 July 2005 Dr Whittaker noted that Mr Watts had been able to cease taking the NSAID and had partially responded to a low dose of methotrexate. A higher dose of methotrexate was prescribed.
50. On 3 August 2005 Mr Watts continued to have problems and prednisone was added to his treatment regime. His symptoms fluctuated over the next few months and in February 2006 ”salazopyrine” was added. By March 2006 Mr Watts demonstrated improvement on the three medications.
51. A file minute dated 24 January 2006 signed by Dr Bashir, DMO, recommended acceptance of liability on the grounds that the possibility that physically demanding service duties made a significant contribution to triggering the episodes of joint and soft tissue disease could not be excluded. I found this file note to be of little assistance as the content was somewhat superficial and did not provide a satisfactory explanation for the recommendation.
EXPERT MEDICAL EVIDENCE
52. In a report dated 18 April 2006 Associate Professor Barnsley, consultant rheumatologist, concluded that Mr Watts suffered from severe psoriatic arthritis, and that his condition was “precipitated by trauma against a genetic susceptibility”.
53. Relevantly, Associate Professor Barnsley obtained a history from Mr Watts that he had problems with his legs “in approximately 2002 or 2003”, and that his “first recollection was that after jumping onto a boat wearing a pack he felt pain in his right posterior calf with swelling”, and that he had problems with his right Achilles tendon ever since.
54. I note that this history conflicts significantly with Mr Watts’ oral evidence and is not consistent with contemporaneous clinical records.
55. Mr Watts also told Associate Professor Barnsley that, at an unspecified time, he had developed pain over the “medial aspect of his left ankle, pain over the forefoot and pain in his knees”, but that these problems had responded well to anti-inflammatory medication and that “all of his pain went away”.
56. In his summary, Associate Professor Barnsley commented that Mr Watts’ various tendon and joint problems in his lower and upper limbs were attributable to psoriatic arthritis and, in particular, he noted that there was no clinical evidence of ligamentous injury to his knees, but rather “a clear cut story of the spontaneous onset of swelling and pain, which is consistent with the systemic arthropathy of psoriatic arthritis”.
57. I note that this comment would suggest that in patients suffering from psoriatic arthritis spontaneous pain and swelling can occur in a joint without clinical evidence of injury.
58. Associate Professor Barnsley stated that there was considerable debate about the role of trauma in the causation of psoriatic arthritis, and that although the medical literature indicated that there appears to be some role for trauma in the precipitation of psoriatic arthritis the role is unclear. Also, that there are important genetic influences that determine susceptibility to the development of the condition. He referred to a conclusion in a review article published in 2001 that stated “a number of studies and case reports now provide evidence that trauma is an important aetiological factor in psoriatic arthritis”, based on this he expressed an opinion that it was possible that trauma contributed to Mr Watts’ clinical presentation of psoriatic arthritis.
59. In addressing the question as to the probability that trauma caused Mr Watts’ condition Associate Professor Barnsley suggested that if one assumes that trauma is an important aetiological factor in psoriatic arthritis, and accepts that Mr Watts was subjected to trauma in the course of his employment, then it is reasonable to argue that the psoriatic arthritis was probably precipitated by that trauma.
60. I found this argument unconvincing and somewhat speculative, particularly as it is based on unestablished assumptions. Furthermore, in assuming that trauma is an aetiological factor, Associate Professor Barnsley provided no analysis as to the nature or severity of such trauma or its possible effects, either in terms of the disease, in general, or the manifestations of the disease reflected in different parts of the body.
61. In a report dated 9 August 2006 Dr Vecchio, consultant rheumatologist, also concluded that Mr Watts suffered from psoriatic arthropathy. Relevantly, he noted that Mr Watts recalled discomfort in his right foot from October 2002 to May 2003 at a time when his duties had included running through the ship and climbing over boats with no mention of a specific incident. Dr Vecchio also made reference to the sequence of events as described in the outpatient records and commented that, in his opinion, all Mr Watts’ symptoms and signs were attributable to psoriatic arthritis and not to trauma.
62. Dr Vecchio expressed the opinion that the onset of Mr Watts’ psoriatic arthritis was coincidental to his employment, and that the weight bearing activity that made him more symptomatic was not aetiologically linked to either the onset or the progression of the disease.
63. Dr Vecchio did note, however, that “all load bearing, manual activity and physical demands would aggravate this psoriatic arthropathy in a very temporary and limited fashion”.
64. On the issue of trauma, Dr Vecchio expressed the opinion that the medical literature support for a positive association between psoriatic arthritis and trauma was anecdotal and usually related to a focal insult and not cumulative microtrauma, as has been suggested in Mr Watts’ case.
65. In oral evidence, Associate Professor Barnsley agreed that psoriatic arthritis was a constitutional condition, but expressed the view that a key issue was whether trauma in the form of direct injury to a joint or direct injury to musculo-skeletal tissue “precipitates, exacerbates or aggravates the underlying … condition”. He also agreed that psoriatic arthritis was a progressive inflammatory disease.
66. With respect to Mr Watts’ claim that the symptoms in his right foot, that he had attributed to the jumping incident, were immediately relieved by oral anti-inflammatory medication, Associate Professor Barnsley stated that traumatic Achilles tendonitis per se tends to respond very poorly to anti-inflammatory medication, and that the symptoms that Mr Watts had suffered were more consistent with psoriatic tendinopathy, that is, a manifestation of psoriatic arthritis. He then went on to say that, based on his understanding of the history, Mr Watts had suffered a mechanical injury that had traumatised his right Achilles tendon at the time of the jumping incident, and that inflammation had persisted because Mr Watts had an underlying predisposition to psoriatic arthritis and, therefore, the trauma to the tendon precipitated psoriatic arthritis.
67. Associate Professor Barnsley conceded that it could be very difficult to distinguish between symptoms of trauma and the symptoms of an underlying arthritic condition that had merely flared at a particular time, and agreed that history and physical examination as well as other evidence of a constitutional arthritis would be relevant.
68. I note at this point that the evidence given by Mr Watts to the Tribunal with regard to the jumping incident was not consistent with the history on which Associate Professor Barnsley based his opinion.
69. In response to a question from the Tribunal, with regard to the progression of Mr Watts’ disease, Associate Professor Barnsley conceded that the alleged trauma to the right foot that Mr Watts had suffered was unlikely to be a major contributor to problems elsewhere, and that although heavy work does not cause the disease it may make the disease apparent more quickly in that certain areas of the body may become symptomatic as a consequence of load bearing activities.
70. In cross examination, Associate Professor Barnsley again indicated that there was considerable debate about the role of trauma in the precipitation of psoriatic arthritis, and that in routine clinical practice it would be extremely difficult to ascertain whether trauma was a precipitant for psoriatic arthritis. However, he indicated that his opinion that Mr Watts’ psoriatic arthritis was precipitated by trauma was based on his reading of the medical literature.
71. Associate Professor Barnsley did concede, however, that the evidence for a positive association between trauma and psoriatic arthritis is largely case based with support by some retrospective studies. He also conceded that case based evidence had significant limitations and is not considered to be high quality evidence, simply the best available, and that retrospective studies where people are asked to report associations with regard to the onset of their disease are prone to bias.
72. Counsel for the respondent referred to a study that had compared two groups of patients with psoriatic arthritis, one group with a history of trauma and the other group without trauma, and found that during the follow-up period the two groups became indistinguishable with no observed differences with regard to the evolution of the disease. Associate Professor Barnsley agreed the findings of this study would support a contention that the spread of the condition to other parts of the body was not related to trauma.
73. Associate Professor Barnsley agreed that his conclusions with regard to the role of trauma in this case were predicated on the assumption that Mr Watts had suffered a specific focal injury to a particular body part, and conceded that the absence of any history of a discrete episode would make it difficult to conclude that a particular set of work conditions contributed to the psoriatic arthritis.
74. In oral evidence, Dr Vecchio confirmed that in his opinion Mr Watts suffered from classical psoriatic arthritis and that the onset of the disease was coincidental to his military service. He also confirmed that Mr Watts had not given him a history of a discrete traumatic event.
75. Dr Vecchio commented that the proposition that arthritis can follow an episode of trauma is disputed and that the supportive evidence has generally been in the form of case reports. Some of the reports that he had read contained incorrect diagnoses and questionable interpretations. He also indicated that evidence from case reports is considered to be the weakest form of medical evidence.
76. Dr Vecchio expressed the opinion that trauma can aggravate or make a region symptomatic, but did not accept that trauma could be the sole or major inciting factor of the type of psoriatic arthropathy suffered by Mr Watts. His contention was that if a body region becomes painful during an episode of activity that is non-traumatic or minimally traumatic the activity is coincidental and merely spreads the pain. To accept any link between trauma and arthritis Dr Vecchio was of the opinion that trauma needed to be significant and limited to the region that has been allegedly traumatised.
77. I note that there was no evidence before the Tribunal to suggest that Mr Watts had, in fact, suffered significant trauma at the time of alleged incident. The subsequent x-ray of his foot was reported as normal, and Mr Watts did not describe any signs of significant tissue injury such as bruising. The impression from his evidence was that the pain seemed out of proportion to a relatively minor traumatic incident.
78. On the issue of aggravation, Dr Vecchio commented that, in someone significantly affected by psoriatic arthropathy of the foot, activities such as walking or jumping were likely to temporarily aggravate symptoms because the underlying problem is inflammation, but that this aggravation of symptoms would be limited in time. He also stated that, in his opinion, Mr Watts’ symptoms would have presented in the normal course of human activity, and that his military service was not in itself a significant factor.
79. On the matter of Mr Watts’ age Dr Vecchio noted psoriatic arthritis can present at any age, even in children and teenagers.
80. In cross examination, Dr Vecchio was asked to consider the history of acute trauma and severe pain described by Mr Watts in his oral evidence. Dr Vecchio expressed the opinion that if, in fact, such an incident had occurred, it represented an “unmasking incident“ and accepted that jumping from boat to boat could cause a temporary aggravation, in the sense of an increase in the symptoms of the underlying arthritis, but could not cause the arthritis itself. He also did not accept that this temporary aggravation amounted to an acceleration of the underlying condition because it had become symptomatic, as in his opinion the condition would have become symptomatic regardless of the alleged trauma.
81. In response to a question from the Tribunal, Dr Vecchio agreed that trauma is common, and that people who suffer from arthritis frequently complain of pain in joints following apparent trauma which, in retrospect, can be attributed to the arthritis. Dr Vecchio also commented that psoriatic arthritis is a chronic condition with fluctuating symptoms and signs and is difficult to treat, but that with treatment there may be periods where the inflammation is controlled and symptoms minimised.
MISSING MEDICAL RECORDS
82. In the course of the hearing, counsel for Mr Watts submitted that there should have been clinical records from September 2002 to May 2003, and that they were either not produced or had been lost.
83. In order to resolve the matter the hearing was adjourned so that the respondent could seek further advice from the Department of Defence.
84. In a letter dated 18 April 2008 Mr Bosotas, from the Department of Defence, Health Records, indicated that no additional documents were able to be located and that neither Health Records nor HMAS Anzac was able to determine whether the records actually existed.
85. The letter also explained that during operational service the Unit Medical Record is usually kept on board ship, but did not clearly explain what happens when treatment occurs on another ship or in a foreign port.
86. On this matter, I note the submission of the respondent that Mr Watts could not simply rely on the absence of those documents to corroborate his oral evidence, and that he made no apparent effort to call any witnesses to support his evidence, despite being aware of the possible missing documentation since at least December 2005.
CONSIDERATION
87. During the hearing counsel for the applicant indicated that he would not be pressing for liability based on the nature and conditions of Mr Watts’ employment because it would be contrary to his own case, and also because he relied on the evidence of Associate Professor Barnsley which did not support such a contention. On my assessment of the evidence before the Tribunal I have no reason to disagree with counsel’s position.
88. Furthermore, counsel for the respondent submitted that the expert evidence before the Tribunal did not support the contention that the psoriatic arthritis suffered by Mr Watts had been caused by anything in the period of employment, but that the issue for determination was whether the condition was contributed to in a material degree by his employment either by way of aggravation or acceleration. Counsel for the applicant conceded on this point and I have no reason not to accept the respondent’s submission.
89. The essence of Mr Watts’ case, therefore, is his claim that he had been asymptomatic until April or May 2003, and after jumping from one boat to another he experienced extreme pain in the ball of his right foot and that this pain represented the first symptoms of his underlying psoriatic arthritis.
90. Counsel for the respondent submitted that the Tribunal should not accept Mr Watts’ claim on the grounds that there was no evidence to corroborate the history that he gave in his oral evidence, and that it was inconsistent with the histories given by him to various doctors, and conflicted with such documentary evidence that was available, including his own written statements.
91. Furthermore, it was submitted by counsel for the respondent that if the Tribunal did not accept that Mr Watts suffered a single traumatic incident, because of the applicant’s abandonment of any reliance on the nature and conditions of his service, Mr Watts’ claim should fail.
92. I accept that there are significant concerns about Mr Watts’ evidence. However, in view of the difficulties arising from the uncertainty due to the allegation that relevant medical documentation was missing and in the interests of fairness, I intend to proceed on the basis that the substance of Mr Watts’ oral evidence should be accepted. I accept that sometime in early 2003 he was asymptomatic until an incident occurred in the course of his employment where he suffered pain in the ball of his right foot.
93. It follows that the essential issue to be addressed is whether this single incident resulted in aggravation and/or an acceleration of his underlying psoriatic arthritis.
94. It was agreed by the parties that ”aggravation”’ means the disease “becoming more severe” and that ”acceleration” means a “hastening of the normal underlying disease” as determined by Hill J in Casarottov Australian Postal Commission (1989) 17 ALD 321.
95. I note that Barwick CJ in Darling Island Stevedoring and Lighterage Co. Ltd v Hankinson (1967) 117 CLR 19 stated that in his opinion the expression “acceleration of the disease” refers to the “acceleration of the progress of the disease itself“ which leads me to conclude that “hastening of the normal underlying disease” should be read as meaning “the hastening of the normal progress of the underlying disease”.
96. I also note the Full Federal Court in Holt v Comcare (2003) 130 FCR 576 determined that whether there has been an aggravation to a pre-existing disease is a question of fact and not law.
97. The applicant’s submission was that the described incident had rendered Mr Watts symptomatic which meant that his underlying psoriatic arthritis had become more severe and, therefore, he had suffered an aggravation of his disease as a result of his employment. Furthermore, as a consequence of this aggravation his disease had been accelerated on the grounds that he had remained symptomatic thereafter with increasing symptoms and disability.
98. It would appear that counsel was suggesting that if an underlying disease is made symptomatic by employment and there are subsequent symptoms attributable to the disease then the progress of the disease itself must have been hastened such that there is a presumption of an open-ended or permanent period of incapacity.
99. In support of this submission the applicant relied on the decision of Burchett J in Martin v Australia Postal Corp (1999) 29 AAR 420 where his Honour distinguished Casarotto as a case in which:
the employee was suffering from a degenerative spondylitic disease of the lumbar spine which, he claimed, had been aggravated by a series of work-related incidents. Each of these incidents was described as something from which the applicant had "completely recovered", or the effects of which were "short-lived", or as "fairly trivial". In the face of these findings of fact, Hill J concluded that it had been open to the Tribunal to find the employee's disability at the time of the hearing was entirely unrelated to his work.
100. His Honour considered that Casarotto should be understood as:
…. an instance of minor injuries that did not produce any acceleration or significant aggravation of the underlying condition. The tribunal of fact had held such aggravation as had occurred to have been but evanescent in its effects. Casarotto was quite a different case from the present, where Mr Martin's asymptomatic condition was made symptomatic, not just for a time, but so as to continue increasingly to cause pain and disability thereafter.
101. The applicant’s submission clearly relied on an assumption that the facts in Martin were similar to those in this case. In my opinion, the evidence before me would not support such a contention.
102. In Martin the applicant was involved in two motor bike accidents in the course of his employment with Australia Post where, on both occasions, he suffered injury to his right shoulder. About three years later after complaining of continuing symptoms Mr Martin was found to have early degenerative osteoarthritis of the right shoulder. Almost three years later still, presumably, as a consequence of continuing degeneration in his shoulder Mr Martin required an operation. The essential question that was raised by the medical evidence in that case was whether the injuries suffered by Mr Martin at the time of his accidents had aggravated or accelerated an underlying but asymptomatic osteoarthritis in the right shoulder. In that case two clearly identifiable injuries were found to have contributed to an underlying degenerative arthritis confined to the right shoulder, with no suggestion of a generalised disease.
103. In my opinion the circumstances in Mr Watts’ case are entirely different from those in Martin. It is clear from the evidence before the Tribunal that Mr Watts suffers from moderately severe psoriatic arthritis (psoriatic arthropathy). It is also clear that his symptoms developed progressively over a period of more than 12 months and were not confined to a single body part. The exact circumstances surrounding the onset of his symptoms are disputed and somewhat unclear, but it is likely that they started in his right foot before progressing to other parts of the body.
104. The medical evidence, including the opinions of the two experts, clearly portrays psoriatic arthritis as a chronic and progressive inflammatory disease that affects various parts of the body by causing inflammation of tendons and joints. The symptoms and signs of the disease fluctuate and can affect different parts of the body at different times with varying severity. The principal treatment is oral anti-inflammatory medication.
105. The cause of psoriatic arthritis is not known, but there was no dispute that undefined genetic factors play a significant role in the development of the disease. The only real dispute between the experts was the role of trauma in psoriatic arthritis in general, and in Mr Watts’ case in particular.
106. Based on his reading of the medical literature, Associate Professor Barnsley expressed the view that trauma is an important aetiological factor in psoriatic arthritis, and concluded that it was possible that trauma contributed to the onset of Mr Watts’ disease.
107. In the course of his oral evidence, however, it became clear that Associate Professor Barnsley’s opinion with respect to trauma and its association with Mr Watts’ psoriatic arthritis was restricted to the manifestation of the disease in the right foot, in particular, the right Achilles tendon, and not Mr Watts’ disease in general. Furthermore, he conceded that any trauma Mr Watts may have suffered to his right foot was unlikely to contribute to his problems elsewhere. It was also clear that his opinion was significantly influenced by the history obtained from Mr Watts, in that his initial injury was to the right Achilles tendon, a history which conflicts significantly with Mr Watts’ own evidence.
108. The role of trauma in psoriatic arthritis is relevant because Mr Watts relied on the opinion of Associate Professor Barnsley in his contention that the pain he experienced at the time of the jumping incident was caused by trauma, and that this trauma was a significant aetiological factor in making his previously asymptomatic disease worse and in hastening the natural progress of the disease itself.
109. Even if I were to accept Associate Professor Barnsley’s opinion at best it would support a conclusion that any trauma to the right foot that Mr Watts may have suffered temporarily aggravated or accelerated the underlying inflammation in his right foot, but did not support the contention that this trauma either aggravated or accelerated the disease itself.
110. Dr Vecchio expressed the view that the role of trauma in psoriatic arthritis is disputed and that support for a positive association was based on relatively weak medical evidence, a point conceded by Associate Professor Barnsley during cross-examination. Furthermore, Dr Vecchio reaffirmed his opinion that trauma played no significant role in Mr Watts’ psoriatic arthritis, and that he suffered from a constitutional disease with his symptoms being entirely coincidental to his employment. He did concede that significant trauma to a particular part of the body could contribute to make that local area symptomatic, but not as a sole initiating factor. In his written report he also conceded that physical activity can aggravate psoriatic arthritis in a temporary and limited fashion.
111. On reflection, the opinions of the two medical experts were not all that dissimilar, but on balance I prefer the opinion of Dr Vecchio as I found his explanation and analysis of the issues more consistent with both Mr Watts’ own evidence and the available documentary evidence. I found Associate Professor Barnsley’s opinion less helpful, as it was clearly based on a history that was not consistent with relevant aspects of both Mr Watts’ evidence and the documentary evidence. Also, I found his evidence to be essentially speculative and tended towards advocacy in that his conclusions relied significantly on findings in the medical literature which he had conceded were based on relatively weak evidence and much debated.
CONCLUSION
112. The decision in this case has been complicated by the unusual nature of Mr Watts’ disease, the inconsistencies between his evidence and the documentary evidence and the possibility of missing clinical records.
113. Notwithstanding these difficulties, I find that the available evidence points to a conclusion that at some time in early 2003, in the course of his employment, possibly following an incident involving jumping from one boat to another, Mr Watts suffered pain in his right foot. He had not suffered similar pain previously and, although troublesome, the pain did not prevent him from continuing with his duties. At a subsequent time, that has not been clearly established, he sought medical assistance and was treated with NSAID medication. The effect of the medication on Mr Watts’ pain, according to his own evidence, was quite impressive with significant pain relief one hour after the first dose, thus allowing him to continue working until some weeks later when he went on annual leave.
114. In the course of time, it became clear that the pain in the right foot that Mr Watts had suffered marked the onset of what was to become a moderately severe progressive inflammatory disease that spread to other parts of the body, namely, psoriatic arthritis (psoriatic arthropathy).
115. It was agreed by the parties that Mr Watts’ employment did not cause his disease. Therefore the question that must be determined is whether the pain that he suffered as a consequence of his employment amounted to an aggravation and/or an acceleration of his underlying disease within the meaning of the Act and, if so, whether the aggravation and/or acceleration was contributed to in a material degree by his employment (s 4).
116. On the issue of aggravation, I find the evidence points to a conclusion that, as a consequence of his underlying disease, it was likely that Mr Watts had inflammation in his right foot prior to the jumping incident and that his work activity had made the inflammation worse so as to cause pain. Although this could be described as an aggravation, I find that it was merely a temporary aggravation of pre-existing inflammation and limited to the right foot.
117. I also find that this aggravation did not precipitate the disease itself or make the disease more severe, but merely unmasked it.
118. On the issue of acceleration, I find that although the jumping incident probably caused Mr Watts to suffer some symptoms sooner than may have been expected I am of the opinion that the evidence before the Tribunal would not support a conclusion that this incident contributed to Mr Watts’ subsequent symptoms or disability, thereby hastening the normal progress of his underlying disease. In my view, the evidence clearly supports a conclusion that Mr Watts’ subsequent difficulties were consistent with the expected progression of his disease.
119. Furthermore, although the evidence does support a conclusion that Mr Watts’ employment made some contribution to his disease, I find that the contribution was minimal, and that any effects of that contribution were short lived and had ceased. Therefore, the contribution did not meet the necessary threshold of significance to have contributed “in a material degree” as required by the decision of Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536.
120. My conclusions are based on an assessment of the evidence in general, the preferred opinion of Dr Vecchio and, in particular, Mr Watts’ own evidence where he described being able to continue to work, despite his pain, and then experienced rapid relief of the pain with oral anti-inflammatory medication.
121. For the above reasons, I find that Mr Watts’ employment did not contribute to his disease or to the aggravation of his disease in a material degree.
DECISION
122. Mr Watts is not entitled to compensation pursuant to s 14 of the Act for the disease psoriatic arthritis (psoriatic arthropathy) as his employment did not contribute to his disease or the aggravation of his disease in a material degree.
123. The decision under review is affirmed.
I certify that the 123 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
Signed: ............[sgd]....................................................................
AssociateDates of Hearing 4 and 5 February and 30 May 2008
Date of Decision 10 July 2008
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Ms S Lepage, Slater and Gordon
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ms E Baggett, DLA Phillips Fox
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