Whitworth and Military Rehabilitation and Compensation Commission (Compensation)
[2023] AATA 172
•16 February 2023
Whitworth and Military Rehabilitation and Compensation Commission (Compensation) [2023] AATA 172 (16 February 2023)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2022/0318
Re:Geoffrey Whitworth
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
Decision
Tribunal:Member W Frost
Date:16 February 2023
Place:Canberra
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
....................[SGD]........................................
Member W Frost
Catchwords
VETERANS’ AFFAIRS – claim for compensation – where liability was denied pursuant to section 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) – dentistry – whether Applicant’s claimed condition arose out of employment – initial employment training – guard duty – ‘dental caries’ – ‘fracture of tooth’ – no material contribution – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 37, 43(1)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth), ss 4, 7, 14
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), ss 5A, 5BCases
Comcare v Mooi [1996] FCA 1587
Comcare v Sahu-Khan [2007] FCA 15
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Oliver and Comcare [2018] AATA 1964REASONS FOR DECISION
Member W Frost
16 February 2023
INTRODUCTION
The Applicant, Mr Geoffrey Whitworth, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision by the Respondent, the Military Rehabilitation and Compensation Commission, which affirmed its determination denying liability to pay him compensation under section 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Act) in relation to ‘dental caries and fracture of tooth’.
Mr Whitworth claimed that these conditions occurred in 1996 while he was employed in the Australian Army. The Respondent was not satisfied that the claimed conditions arose out of, or in the course of, Mr Whitworth’s employment, or that these conditions were contributed to a material degree by his employment with the Commonwealth.
The Tribunal has considered all documents filed in this proceeding, including those lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the evidence and the parties’ submissions. For the following reasons, the Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act. Accordingly, Mr Whitworth’s application to the Tribunal is unsuccessful.
ISSUES
The issue for the Tribunal to decide in this proceeding is whether Mr Whitworth is entitled to compensation under section 14 of the Act, which requires consideration of the following issues:
(a)the nature of Mr Whitworth’s claimed conditions;
(b)whether Mr Whitworth suffers an injury (other than a disease) arising out of, or in the course of, his employment; or
(c)whether Mr Whitworth suffers a disease, being an ailment or the aggravation of any such ailment that was contributed to in a material degree by his employment.
BACKGROUND
In December 1995, Mr Whitworth completed a ‘Medical History Questionnaire’ for entry into the Australian Army and did not identify any dental issues.[1]
[1] Exhibit 1, T4, page 23.
On 27 February 1996, Mr Whitworth enlisted in the Army and undertook full-time service as an initial recruit for one year until 27 February 1997.[2]
[2] Exhibit 1, T9, pages 28-34.
On 29 February 1996, two days after Mr Whitworth’s enlistment, a ‘Dental Health on Enlistment’ form, completed by a Dental Officer with the Department of Defence, noted pre-existing issues with Mr Whitworth’s teeth numbered 12, 13, 16, 26, 36 and 47.[3] Mr Whitworth did not list any dental issues in a ‘Medical and Dental History’ form completed on the same date or in subsequent forms completed on 7 July 1998 and 24 January 2000.[4]
[3] Exhibit 1, T3, page 16. See also Exhibit 1, T5, page 24.
[4] Exhibit 1, T3, pages 19 and 21-22.
On 2 October 1996, it was recorded in Mr Whitworth’s ‘Dental Clinical Record’ that he reported pain in tooth 26.[5] The clinician noted that there were gross caries, performed a dental filling on this tooth and warned Mr Whitworth that he ‘may require RCT’ [Root Canal Therapy].[6]
[5] Exhibit 1, T3, page 15.
[6] Ibid.
From 27 February 1997 until 17 November 1999, Mr Whitworth was in the Army’s Reserve Service.[7] He returned to full-time service from 17 November 1999 to 12 January 2001 and was transferred to Army’s General Reserve Service on 13 January 2001.[8] On 27 February 2001, Mr Whitworth was transferred to the Inactive Reserves until he was discharged from the Army on 26 October 2010.[9]
[7] Ibid.
[8] Ibid.
[9] Ibid.
On 29 July 2020, Mr Whitworth made a claim for compensation to the Department of Veterans’ Affairs (DVA) for an injury or disease which was said to have occurred on 24 July 1996.[10] Mr Whitworth claimed he ‘chipped’ his tooth ‘while in IET [initial employment training] and was told [he] could not see a dentist until [he] was posted’ to his unit in six weeks’ time.[11] Mr Whitworth further claimed that, by the time he was able to see a dentist his tooth ‘had deteriorated and required most of the tooth to be rebuilt with amalgam’ resulting in ‘some sharp edges on the tooth’ and sensitivity.[12] Mr Whitworth stated that the ‘tooth/teeth are now very sensitive’ and as a result of his condition he requires ‘medical treatment’.[13]
[10] Exhibit 1, T10, pages 35-39.
[11] Ibid., page 37.
[12] Ibid.
[13] Ibid., page 38.
In January 2021, the Department of Defence informed DVA that: ‘Due to the passage of time, there is no way to confirm if this incident was reported to the chain of command’.[14] Defence also stated that it could not confirm if Mr Whitworth was denied immediate treatment ‘without knowing the identity of the person who is alleged to have done so’, but noted that a soldier ‘can attend a medical or dental facility every morning for sick parade’.[15]
[14] Exhibit 1, T14, page 47.
[15] Ibid.
On 25 February 2021, the Respondent determined that it was not liable to pay compensation to Mr Whitworth for ‘dental caries’ and ‘fracture of tooth’ under the Act.[16]
[16] Exhibit 1, T15, pages 48-53.
In or around April 2021, a Dental Advisor from DVA provided the following opinion to questions posed by a delegate of the Respondent in relation to Mr Whitworth’s claimed conditions:[17]
[17] Exhibit 1, T20, pages 67-68.
1. Was a root canal treatment recommended in 1996? Was this treatment for the recent injury, a routine treatment, or for another reason?
Root canal treatment for this tooth was not recommended in 1996 - rather, the client was warned the tooth may require root canal treatment in the future. The treatment carried out on 2/10/1996 (202073521C page 42) was routine treatment - the client was experiencing pain with this tooth and it was noted the tooth had "gross caries" - meaning there was alot [sic] of decay which had gone very deep within the tooth. The decay was removed and the tooth was filled that day.
Please note the dental charting done upon enlistment showed this tooth was already decayed when the client enlisted (202073521C page 44).
2. Was other medical treatment undertaken instead of a root canal treatment? Can you explain the reasons for this?
No other dental treatment was undertaken on this tooth, as the tooth would not have required further treatment (root canal treatment) unless the client was experiencing pain with this tooth after the filling was done in October 1996.
3. Would the recommendation for a root canal treatment continued after the medical treatment was undertaken? Would there have been a recommended timeframe for this treatment?
After the filling was done in 1996, root canal treatment would only have been necessary if the client experienced pain with this tooth. There was no recommended timeframe for root canal treatment, as it was dependant on whether the client experienced any pain with this tooth after the filling was done.
4. Is there any evidence to suggest not providing the root canal treatment in 1996 has resulted in an additional injury, deterioration or aggravation outside of the normal progression of the condition?
There is no evidence in the dental records, not providing the root canal treatment in 1996 has resulted in an additional injury, deterioration or aggravation outside of the normal progression of the condition with this tooth.
In June 2021, the Respondent informed Mr Whitworth that it was intending to affirm the decision under review, but provided him with an opportunity to supply any further evidence in support of his claim.[18] Mr Whitworth was granted a requested extension of time to seek further information, including attending his dentist.[19] He subsequently requested that DVA seek the relevant ‘Duty logs’ from the Department of Defence from the period 20 May 1996 to 6 September 1996.[20] However, Defence again informed DVA that due to the passage of time, ‘there is no way to confirm if this incident was reported to the chain of command’.[21]
[18] Exhibit 1, T21, pages 69-72; T22, pages 74-75.
[19] Exhibit 1, T22, page 75.
[20] Ibid., page 74.
[21] Exhibit 1, T1.1, page 9.
In July 2021, Mr Whitworth informed DVA that his dentist ‘could not…would have done anything different without x-rays, as the medical report has been written in a way that justified what the original dentist had done’.[22]
[22] Exhibit 1, T22, page 74.
On 14 January 2022, following Mr Whitworth’s request for reconsideration, the Respondent affirmed the determination dated 25 February 2021.[23]
[23] Exhibit 1, T1.1, pages 6-10; T17, page 57.
Also on 14 January 2022, Mr Whitworth applied to the Tribunal for review of the Respondent’s decision of the same date.[24] He claimed the decision was wrong because:[25]
Defence have not kept adequate records or will not search records to find the evidence that I reported the incident correctly and was not recorded correctly by superior personnel and that I did indeed receive the injury on defence land during duty.
[24] Exhibit 1, T1, pages 1-5.
[25] Ibid., page 4.
LEGISLATION
Subsection 14(1) of the Act provides:
Subject to this Part, the Commonwealth is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
At the relevant time for consideration of the claimed injury, being 1996, the applicable definition of an ‘injury’ was contained in then subsection 4(1) of the Act 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 employees’ employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;…
Subsection 4(1) of the Act also then 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 by the Commonwealth…
Section 4 of the Act defined ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also provided that ‘aggravation’ includes ‘acceleration or recurrence’.
For completeness, the Tribunal notes that the present definitions of ‘injury’ and ‘disease’ in sections 5A and 5B of the Act, respectively, were added with effect from 13 April 2007 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (2007 Amendment Act).
Subsection 7(4) of the Act provides:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
In circumstances where Mr Whitworth first sought treatment for his conditions before the 2007 Amendment Act came into operation, the Tribunal has applied the definitions of ‘injury’ and ‘disease’ as they were in the Act at that time and before the amendments to those definitions came into operation in 2007.
EVIDENCE
Lay evidence
Mr Whitworth
On 19 March 2021, Mr Whitworth made a Statutory Declaration, which stated as follows:[26]
1.I was employed full time in the Australian Army from 27/02/1996 – 27/02/199
2.I was posted to School of Military Engineering (SME) from the 20 May 1996 to 06 September 1996 to complete my Initial Employment Training (IET).
3.Around July 1996 I was rostered on for guard duty at the SME front gate, I was “on duty” on the gate and one of the other soldiers who was doing guard duty but was not “on Duty” brought my dinner for the night. While eating my dinner in the gate house I Chopped my tooth on a bone fragment.
4.I reported this injury to the NCO on Duty and then my section commander.
5.I was informed by my section commander that as we were still in training and I could potentially miss too much training I would have to wait until I had posted to my unit before seeing a Dentist.
6.I was eventually able to see a dentist on the 2nd of October 1996.
[26] Exhibit 1, T18.1, page 60.
Mr Whitworth gave evidence at the Tribunal hearing. He told the Tribunal that the Army was aware of his dental caries at the time of his enlistment and proceeded with his recruitment. Mr Whitworth also stated that the documentation noted that his dental hygiene was good at that time.
Mr Whitworth told the Tribunal that, around July 1996, when he was on guard duty, at approximately 7.00pm he received a meal in a foil container. He sat in the guard house while eating the meal and bit into a piece of lamb and fractured his tooth. Mr Whitworth said he could not leave the guard house until relieved. He subsequently reported the incident to his duty officer, and then ‘on parade’ the following morning he reported it to his section commander. They ‘took it up the chain of command’ to be referred to a dentist. Mr Whitworth was advised that, because of the ‘tightness’ of the training schedule, he could not see a dentist until he was posted to his unit in 6 weeks’ time.
Mr Whitworth saw a dentist on 2 October 1996 and told the Tribunal his tooth had deteriorated through ‘general eating’, it was filled with amalgam and he was advised that ‘a root canal’ would ‘be required’ and to speak to ‘my hierarchy’ to organise this treatment, which he did, however this root canal therapy never occurred because he was discharged to the Army Reserves.
By way of cross-examination, Mr Whitworth confirmed that he enlisted in the ‘Ready Reserve Scheme’ with the Army, which required one year of full-time training.
Mr Whitworth was taken to his ‘Dental Health on Enlistment’ record from the Department of Defence and an entry from 29 February 1996.[27] He could not recall the appointment given the length of time that had elapsed. He accepted the entry on this date stated that he required three dental fillings but did not recall any discussion at the time of them being required. He also agreed that the entry ‘UR lateral supernumerary’ referred to him having an extra tooth at tooth 12, but he did not recall any discussion of this matter upon enlistment. He also did not recall anything else from this initial appointment on 29 February 1996.
[27] Exhibit 1, T3, pages 16-17.
Mr Whitworth confirmed that he would have been provided with an induction at the commencement of his training, but could not recall its content. He agreed that he was provided with information regarding access to medical and dental services, including ‘sick parade’. He told the Tribunal that, during the training period, a person could present to ‘morning parade’, inform them of any illness or injury, then be dismissed to go to ‘sick parade’. He said in training the only time he presented for ‘sick parade’ was with the tooth and was told he had to wait six weeks to see a dentist.
Mr Whitworth was referred to his ‘Dental Clinical Record’ from the Department of Defence and agreed that these were instances of further dental care he received during his first year of enlistment.[28]
[28] Ibid., page 15.
The first attendance, following the dental check on enlistment on 29 February 1996, was on 2 October 1996. Mr Whitworth agreed that the entry ‘SPDE’ referred to ‘sick parade’ and recorded his complaint of pain at tooth 26. He said he told the dentist he cracked the tooth six weeks ago and was without treatment since that time. Mr Whitworth agreed there was no reference in this entry to him having cracked the tooth, but did not agree that he simply reported pain at that tooth and not a crack. Mr Whitworth was referred to the phrase ‘gross caries’, which represented significant tooth decay. He did not recall discussion of the decay or any other matter during the appointment in October 1996. He accepted that amalgam filling was applied to the tooth. Mr Whitworth was referred to the entry, ‘warned patient may require RCT [root canal treatment]’, but did not recall any associated discussion. He accepted that the dentist would have warned him the tooth required root canal treatment if it remained symptomatic. He recalled the appointment taking approximately half a day. He missed work in the morning and then believed he recommenced without restriction. In this regard, Mr Whitworth agreed that the appointment did not impact on any aspect of his employment.
The next dental appointment was on 4 November 1996 and involved discussion of the ‘extra tooth’ and its removal. On 6 November 1996, Mr Whitworth again attended a dental appointment for an amalgam filling of tooth 47, but could not recall this appointment. A notation stated that ‘Requests removal of 12 supernumerary’, and Mr Whitworth confirmed that he requested removal of tooth 12 because he would constantly bite his tongue given this extra tooth was sitting behind his other teeth. In this regard, Mr Whitworth did recall this element of the appointment.
At the following dental appointment on 2 December 1996, tooth 12 was extracted. Mr Whitworth recalled being given a ‘chit’ specifying that he was not to exercise for three days or undertake heavy work. This was the first time he had received a ‘chit’ and recalled ‘being made fun of’ for receiving a ‘chit’ for his tooth removal and to allusions to him ‘malingering’.
Mr Whitworth was referred to his ‘Dental Clinical Record’ from 1998, but did not recall anything from appointments on 7 July 1998, 27 August 1998, 24 January 2000, 4 February 2000, 9 March 2000, 22 March 2000 and 2 May 2000.[29] However, Mr Whitworth agreed that in all appointments, with the exclusion of that on 2 October 1996, there was no reference to tooth 26 in the dental records.
[29] Exhibit 1, T3, page 14.
Mr Whitworth was taken to a ‘Medical and Dental History’ form he completed on 7 July 1998 and agreed that he did not report any problem or complication of any kind following dental treatment or any issues with tooth 26. In addition, Mr Whitworth accepted that a ‘Medical History Questionnaire’ form Mr Whitworth completed on 1 October 1999 did not mention any dental-related issue.[30] He also agreed that a further ‘Medical and Dental History’ form completed on 24 January 2000 again did not mention any dental issues, including with tooth 26.[31]
[30] Ibid., page 26.
[31] Ibid., page 22.
Mr Whitworth accepted that a ‘Medical History Questionnaire’ he completed on 21 November 2000 at around the time of his discharge from the Army did not mention tooth 26.[32] He told the Tribunal he was at that time informed that if there were any remaining medical issues on this form he would not be discharged. He therefore added the words, ‘cleaned fully’, in reference to a ‘swollen/infected knee’ he reported in that form.[33]
[32] Exhibit 1, T8, page 27.
[33] Ibid.
Mr Whitworth was referred to his claim form completed on 29 July 2020, which stated that the incident with his tooth occurred on 24 July 1996. He told the Tribunal he knew the incident occurred approximately six weeks before he was posted to his unit but accepted that the identification of this date was essentially a guess. Similarly, an ‘Injury or disease details sheet’ from 2021 listed the date of injury as 1 July 1996. Mr Whitworth said this was also a ‘guess date’; he did not recall the specific date of injury.[34] Dr Gupta noted that the approximate date of onset of the injury or disease was March 2019, because ‘the pain had been at a level where it was an issue for at least a year’ from when Mr Whitworth first saw Dr Gupta. Mr Whitworth said he had pain ‘long before’ he saw Dr Gupta in 2021, including ‘sensitivity to cold and heat’ occurred when consuming hot or cold items since the incident. Mr Whitworth’s evidence was that until 2020 he was unaware that he could make a claim to DVA. He told the Tribunal he spoke to a dentist in the United Kingdom in 2003 about this issue but did not progress it due to cost.
[34] Exhibit 1, T16.1, page 55.
Mr Whitworth was asked for any further detail regarding the event in July 1996 whereby he claimed to have chipped his tooth. He told the Tribunal he was on guard duty and at approximately 6.30pm or 7pm in the guard house, another colleague brought him a meal, he consumed what was said to be boneless lamb and bit into bone fragment causing him pain and a chipped tooth. He could not recall whether he finished the meal. Mr Whitworth was relieved from duty, reported the incident that evening to his duty officer or ‘Duty NCO [Non-Commissioning Officer]’, he understood the incident was logged, and reported it again to his section commander at parade the following morning. He was subsequently told he would have to wait six weeks because the Army did not want him to miss any training.
Mr Whitworth said he physically took out the bone fragment after biting into it and put it back in the meal tray. He did not recall seeing any part of his tooth, but felt ‘sharp edges’. He concluded that he chipped his tooth, having bitten into the bone fragment and feeling sharp edges on his teeth after experiencing pain. He did not agree that he could not specifically state that he chipped his tooth given the ‘sharp edges’, feeling ‘bits missing’ with his tongue and could ‘still feel it now’. He acknowledged there were pre-existing issues with tooth 26 at enlistment requiring dental filling and confirmed no one witnessed this incident. Mr Whitworth told the Tribunal he was denied attendance at sick parade because his issue was dental, not medical, and it would have required attendance at another military base. In this regard, Mr Whitworth was told he would be required to wait six weeks to see a dentist because he could not miss any of the initial training. He told the Tribunal he had ‘no choice’ but to endure the pain; he was given an order. Mr Whitworth agreed that, despite the pain being a ‘seven or eight’ out of 10, he successfully completed his initial training, was then posted to his unit, and saw a dentist in October 1996.
Mr Whitworth was taken to the reference in his Statement of Facts, Issues and Contentions that he did not report any dental issues in three medical history questionnaires because he wanted to avoid the stigma of being labelled a ‘malingerer’ which he said had occurred after the initial treatment.[35] He agreed that the first of these questionnaires completed on 29 February 1996 predated the separate tooth extraction in December 1996, which was the subject of the issues causing him to be labelled a ‘malingerer’. He accepted this apprehension arose following the tooth removal and not following the dental work regarding tooth 26 in February 1996.
[35] Exhibit 1.
Mr Whitworth said he could not write down in his discharge documentation that there was an issue with tooth 26 because he would not be discharged. He agreed this paperwork was completed before he saw a doctor and at that time, he would not have been aware of there being any issue with discharge if he referred to a dental issue, as he had done with a knee condition. To this end, Mr Whitworth said he was ‘unsure’ why he only referred in that paperwork to a knee condition and not his tooth.
Mr Whitworth said that between 1996 and 2003 he did not recall seeing a dentist and that his dental records do not report any issue with tooth 26 shortly after his enlistment in February 1996. He agreed he had tooth decay upon enlistment which was noted in the dental records. Mr Whitworth said Defence was aware of the tooth decay, they proceeded with enlistment and accepted this risk.
Mr Christopher Hawkes
On 2 November 2022, Mr Hawkes made a Statutory Declaration, which stated as follows:[36]
1. I was in Engineer Corps, Australian Army from Feb 1996 – December 2011.
2. I conducted Initial Employment Training at the School of Military Engineering, in Moorebank NSW from May – August 1996.
3. I attended the course with Geoffrey Whitworth who subsequently was posted with me and other service members to the 2nd Combat Engineer Regiment afterwards.
4. During the course, all trainees were required to mount guard (rostered static and roving security) at the front gate and fenceline of the School of Military Engineering. During these rostered work periods, meals were provided by the mess hall in a pre-packaged form and delivered to the front gate.
5. During one of the rostered guard times, Geoffrey Whitworth broke a tooth when one of the pre-packaged meals contained a bone fragment that was not visible.
6. He informed the Training Staff of the injury and was subsequently informed that no medical treatment would be available until arriving at his new posting in Brisbane six weeks later. This was due to the tight timeframes of the training and the likelihood of him being unable to complete the course.
[36] Ibid.
Mr Hawkes gave evidence at the Tribunal hearing.
By way of cross-examination, Mr Hawkes confirmed that he was part of the Ready Reserve Scheme with the Army in 1996. He completed the full-time one year training in this Scheme and was ultimately transferred to the Engineers Corps. He served for approximately 20 years with the Army. He told the Tribunal that, in February 1996, at the commencement of his service, he underwent induction which included being told that, if he was injured, to see his section commander and he would be sent to a doctor for assessment. In practice, however, he said that this would not occur and no amount of training could be missed in order to complete the initial training.
Mr Hawkes was referred to his abovementioned Statutory Declaration, which stated that Mr Whitworth broke his tooth while on duty. He told the Tribunal that when a person was on duty in the guardhouse, food was delivered from the kitchen and contained in a ‘hot box’. Mr Hawkes confirmed he did not witness this event; he and Mr Whitworth were in the same troop, and he recalled Mr Whitworth telling him the following morning that he ‘bit down on something’ and had broken his tooth. The conversation ‘possibly’ included two or three other people, but he could not recall the other people’s identities. Mr Hawkes told the Tribunal that Mr Whitworth said words to the effect that, ‘I broke my tooth last night while eating dinner…on guard’. Mr Hawkes said that Mr Whitworth may have shown people his tooth, but he could not recall if this occurred.
Mr Hawkes was taken to the statement in his Statutory Declaration regarding informing staff and recalled that Mr Whitworth alerted the section commander on morning parade, but said he knew there was ‘no support’ because this was not confined to Mr Whitworth; their area or unit was not equipped to deal with these matters, and they were not dealt with until a soldier was posted to their unit after initial training. He recalled that Mr Whitworth had told him he had to wait until he was posted to his unit in Brisbane before receiving attention for this dental issue.
Expert evidence
Dr Avantica Gupta – Dentist
On 3 March 2021, Dr Gupta assessed Mr Whitworth for the first time and recorded in a DVA ‘Injury or disease details sheet’ for Mr Whitworth’s claimed ‘Tooth Decay’ a diagnosis of apical periodontitis T26 with periapical radiolucency around mesial roots.[37] Dr Gupta reported that the basis for this diagnosis was that, on examination, tooth 26 had deep amalgam filling encroaching the nerve.[38] Dr Gupta noted that Mr Whitworth complained of ‘constant dull ache from the top left molar’ for ‘more than one year’ and that a ‘Cold test’ induced a ‘sharp shooting pain lasting for 4-5 seconds’.[39] An x-ray was recorded to show ’26, deep DOL filling (Amalgam)’.[40] Dr Gupta advised that the approximate date of onset for the condition was approximately 3 March 2019.[41] Dr Gupta did not give evidence at the Tribunal hearing.
[37] Exhibit 1, T16.1, page 56.
[38] Ibid.
[39] Ibid.
[40] Ibid.
[41] Ibid.
Dr John Joyce – Dental Surgeon
On 5 October 2022, Dr Joyce provided a requested report to the Respondent’s solicitors in this proceeding.[42] The report relevantly stated that:[43]
[42] Exhibit 1.
[43] Ibid.
Diagnosis – dental caries
…Having considered the materials provided to you, did the applicant suffer from dental caries of tooth 26 from January 1996 – February 2005?...
From the dental records provided, the applicant did suffer from dental caries of tooth 26. The dental caries was noted at the initial dental examination on the 29/2/1996. The 13 and 47 tooth were also noted to have dental caries. The wisdom teeth were noted as unerupted and a supernumery tooth was charted in the 12 region.
…what is the diagnosis of the applicant’s dental condition, including at the time he enlisted in February 1996?
The diagnosis of the dental condition at the initial dental consultation was dental caries in the teeth 13, 26 and 47.
…when did that condition develop?
The dental caries in the tooth 26 diagnosed on the 29/2/1996 would have developed prior to this date. (Prior to enlistment.)
Diagnosis – Fracture of tooth
…Having considered the materials provided to you, did the applicant suffer from a fracture of tooth 26 at any time around July 1996, or at any time from January 1996 – February 2005?...
From the dental records provided, the applicant did suffer a fracture of the tooth 26. As per the applicant’s statement he chipped the tooth eating sometime in July 1996. He was then seen for a dental assessment on 2/10/1996 to treat the fractured tooth.
…what is the diagnosis of that condition?
The applicant presented to the dental unit on the 2/10/1996 complaining of pain on the 26 tooth. The diagnosis was gross dental caries. On removal of the carious tooth structure a carious pulpal exposure was noted. Linings were placed and the tooth was restored. The possibility of root canal therapy was discussed if the tooth became symptomatic.
…when did the condition develop?
The caries treated on the 2/10/1996 was diagnosed at the initial dental examination on the 29/2/1996. The caries developed prior to the diagnosis on the 29/2/1996.
Employment contribution – dental caries
…If you characterise the applicant as having dental caries at tooth 26 during the period from January 1996 – February 2005, what caused or contributed to its development…
The applicant was diagnosed with dental caries in the tooth 26 on dental examination on 29/2/1996. The caries would have been present prior to enlistment.
…did the applicant present with dental caries at tooth 26 upon his enlistment with the Army reserve?
Yes, the applicant presented with dental caries on the 26 upon his enlistment as per the examination notes on the 29/2/1996.
…was it materially contributed to by the applicant’s employment with the Army reserves, and if so, how?
Not in my opinion. The progression of the caries may have been contributed by the applicant not treating the caries from the initial diagnosis.
…if you consider there was more than 1 causal factor, please identify them (including non-employment factors) and discuss the estimated contribution of each factor.
The causal factor was the failure to diagnose the caries prior to enlistment. I am unsure as to if this was due to irregular dental attendance as I have no dental records prior to the 29/2/1996. Once diagnosed on the 29/2/1996 the dental caries may have progressed until the tooth eventually fractured, requiring treatment on the 2/10/1996. I am unable to comment on why the dental caries was not treated until 2/10/1996 after diagnosis on the 29/2/1996.
Employment contribution - fracture of tooth
…If you characterise the applicant as having fractured tooth 26 at around July 1996, or at any time from January 1996 – February 2005, what caused or contributed to the injury…
The applicant has reported that his tooth 26 was fractured while eating on duty sometime in July 1996.
…did the injury arise out of or in the course of the applicant’s employment with the Army reserves [sic]?
The injury did not arise out of the course of the applicant’s employment with the Army reserves in my opinion. The caries in the 26 was present prior to enlistment as per the diagnosis at the initial examination on the 29/2/1996.
…was the injury caused by any non-employment related factors?
The injury of the fractured 26 tooth was caused by gross caries as per the diagnosis 2/10/1996 and the initial diagnosis of caries on the 29/2/1996. This caries is a non-employment related factor in my opinion.
…
CONCLUSION
The applicant presented for an enlistment dental exam on 29/2/1996. Dental caries was noted in the teeth 13, 26 and 47 teeth. No radiographs were available for perusal. The caries noted would have been present prior to enlistment. No treatment of the existing decay was undertaken and the 26 progressed until it fractured around July 1996. This was then treated on 2/10/1996 and definitively restored with amalgam. Root canal therapy was discussed and would be required if any symptoms arose post restoration. All of the treatment undertaken on the tooth 26 stems from a pre-existing condition of decay prior to enlistment in my opinion which has been formed from perusal of the records I have available to me. [emphasis in original]
Dr Joyce gave evidence at the Tribunal hearing and confirmed adherence to his abovementioned report. He told the Tribunal that he graduated with a Bachelor of Dental Science in 1995 and began working as a dentist in 1996.
Dr Joyce explained the information and teeth numbering system contained in the chart in Mr Whitworth’s dental records.[44] He told the Tribunal the two handwritten circles at tooth numbered 26 in the dental chart represent the identification of ‘decay and the surfaces of decay’ of the tooth with no existing dental filling. Dr Joyce also confirmed there was decay identified on teeth numbered 13 and 47. Dr Joyce further told the Tribunal that the handwritten note, ‘UR lateral supernumerary’, under the heading ‘Occlusion’ in the dental records meant there was a tooth in the upper right section which was an ‘extra tooth’, otherwise known as a ‘supernumerary tooth’.
[44] Exhibit 1, T3, page 16.
Dr Joyce was referred to the entry in Mr Whitworth’s dental records for 2 October 1996 and interpreted the accompanying handwritten notes to mean that the patient presented complaining of ‘pain’ in tooth 26, with ‘gross caries’ being ‘a large amount of caries or decay’. As a result, the patient was given local anaesthetic, the nerve was exposed after cleaning out the decay, followed by ‘pulp dent’ being put into the tooth before filling to stimulate healing, and finished with the amalgam filling. The final words in that entry, ‘warned patient may require RCT’ were ‘explanatory’ and referred to root canal therapy.
Dr Joyce was referred to the statement in his report from October 2022 that Mr Whitworth had ‘chipped the tooth eating sometime in July 1996’.[45] He said this was based on Mr Whitworth’s written statement and that there was no mention of this fracture in any of the dental records.
[45] Exhibit 1.
By way of cross-examination, Dr Joyce confirmed he had not spoken to the treating clinician who performed the dental filling on tooth 26 in October 1996. He told the Tribunal that the reference in his report to the possibility of root canal therapy on tooth 26 if it became ‘symptomatic’ after the filling in 1996 was taken from the dental records of October 1996.[46] However, Dr Joyce confirmed that these dental records do not state that root canal therapy was required if tooth 26 became ‘symptomatic’. Dr Joyce’s opinion, based on the dental records, was that the correct treatment for tooth 26 was undertaken on 2 October 1996. He told the Tribunal the first step for a patient presenting with pain is to ‘remove the caries in its entirety’, or the decay, and, depending on the depth of the decay, apply medicaments in the base of the tooth before putting the permanent filling on the top of the tooth. Dr Joyce also conformed that he would not, at that time, have performed root canal therapy and it would have been based on symptoms after the filling.
[46] Ibid.
The Tribunal asked Dr Joyce to confirm his written opinion that the fracture in Mr Whitworth’s tooth 26 was caused by pre-existing ‘gross caries’, as diagnosed in February and October 1996.[47] He told the Tribunal that the fracture in the tooth, as mentioned by Mr Whitworth, would be ‘predominantly due’ to the caries in the tooth or the amount of decay. As a result, the underlying tooth structure ‘would be soft’ and therefore have ‘unsupported’ enamel. He further told the Tribunal that:
pressure on that unsupported enamel can result in a fracture of that enamel thereby resulting in…what feels like a large cavity that was, more than likely, sitting underneath the enamel before it actually fractured.
[47] Ibid.
Following this question from the Tribunal, the Respondent’s representative asked Dr Joyce how ‘pressure’ may be applied on a tooth to result in a fracture. Dr Joyce replied that pressure could be applied from ‘eating pressure’, whether that be ‘something hard or crunchy’ or, depending on the size of the caries or decay, it ‘may not necessarily be something that is hard or crunchy’. He also said that ‘sometimes even lateral pressure from grinding or clenching’ on unsupported enamel can result in a fractured tooth.
CONTENTIONS
Mr Whitworth
In his Statement of Facts, Issues and Contentions dated 28 November 2022, Mr Whitworth relevantly stated that the Australian Army ‘knew about’ his pre-existing dental caries and ‘accepted the risk of the condition’.[48] He further stated that:[49]
[48] Statement of Facts, Issues and Contentions of the Applicant dated 28 November 2022, paragraph 10.
[49] Ibid., paragraphs 11-19.
The applicant suffered diagnosed dental caries of tooth 26 from February 1996 – October 1996. This was noted at the dental examination on 29 February 1996, which also noted teeth 13 and 47 had dental caries but did not spontaneously crack
The cracked tooth occurred while the applicant was on Guard duty. The applicant was on duty at the front gate at the School of Military Engineering (SME). When on duty you are restricted to 2 locations, the duty room, and the gate house. At the time the applicant was on duty at the gate house, while on duty at the gate house you cannot leave your post unless relieved by another soldier. If your gate house duty falls during mealtime you are brought a “hot box meal” and you eat at the gate house. During the course of one of my gate house shifts I was brought my meal and while consuming the meal I bit into a boneless lamb steak and cracked my tooth on an unseen bone fragment. The incident was recorded in the duty log when I was relieved of my post and returned to the duty room.
The duty logs from the period in question have not been produced by the respondent after many requests.
…
The applicant did not report any tooth relate injuries in the 3 medical history questionnaires on 29 February 1996, 7 July 1998, and 24 January 2000. As he wanted to avoid the stigma of being labelled a “malingerer” which had occurred after the initial treatment.
The applicant did not report any injuries on his discharge medical report as he was advised by the medical examiner that the Australian Army would not sign off on discharge if there were any injuries listed on discharge paperwork.
…
Dental Records states “patient may require RCT” no where in the dental records does it state the root canal treatment “was dependant on whether the client experienced any pain with this tooth after the filling was done.”
Dr Avantica Gupta stated to the applicant when asked at the request of DVA if the treatment carried out was the correct treatment, she could not make a determination on this as there was insufficient information available to her. [errors in original]
Mr Whitworth contended that the Respondent is liable to pay for treatment for his claimed conditions pursuant to section 14 of the Act and noted that he ‘is seeking cost of treatment only as recommended by the initial dentist, not compensation’.[50]
[50] Ibid., paragraph 20.
Respondent
The Respondent acknowledged, based on the report of Dr Joyce, that Mr Whitworth suffers from dental caries and a fracture or chipping of tooth 26. However, the Respondent contended that the Tribunal cannot be satisfied on the available evidence that these conditions were contributed to by Mr Whitworth’s employment with the Army.
The Respondent relied on Dr Joyce’s report, which opined that neither of the conditions were contributed to a material degree by Mr Whitworth’s employment, but rather that the dental caries in teeth 13, 26 and 47 had developed prior to his enlistment, and that the fracture to tooth 26 was caused by non-treatment of the pre-existing dental caries. Accordingly, the Respondent contended, the fracture of the tooth was actually caused by non-treatment of the pre-existing dental caries and there is no other evidence to support Mr Whitworth’s position that the claimed conditions were contributed to by his employment, including that he was instructed to wait a period of time to seek treatment for his fractured tooth.
As a result, the Respondent sought a decision from the Tribunal that it is not liable to pay compensation to Mr Whitworth under the Act and therefore an affirmation of its decision of 14 January 2022.
CONSIDERATION
What is the nature of Mr Whitworth’s claimed conditions?
Based on all the evidence, the Tribunal is satisfied that Mr Whitworth suffered from dental caries, or tooth decay, and a fracture of tooth number 26. The existence of both conditions is supported by the aforementioned report of Dr John Joyce, Dental Surgeon, dated 5 October 2022.
Dr Joyce opined that Mr Whitworth suffered from dental caries of tooth 26, which was noted at the dental examination on 29 February 1996, shortly following his enlistment in the Army on 27 February 1996. Dr Joyce also opined that Mr Whitworth fractured tooth 26 in July 1996, being a time he was employed with the Commonwealth.
Does Mr Whitworth suffer an ‘injury’ or ‘disease’ to establish liability?
Based on the available evidence, and most relevantly the weight of expert evidence, the Tribunal is not satisfied that Mr Whitworth meets the requisite statutory requirements for the Respondent to be found liable to pay him compensation, including in the form of medical treatment costs, pursuant to the Act.
As set out above in these reasons, former section 4 of the Act required that, respectively, an employee suffered an injury that ‘arose out of, or in the course of’ their employment or that a disease was ‘contributed to, to a material degree’ by that employment with the Commonwealth. The Tribunal is not satisfied that Mr Whitworth meets either requirement for his claim to be successful.
The Tribunal finds that Mr Whitworth’s dental caries, or tooth decay, constitute a ‘disease’ under then subsection 4(1) of the Act, because the development of this condition occurs gradually over time. To this end, the Federal Court of Australia in Comcare v Mooi [1996] FCA 1587 at [16] held that a disease is ‘a disturbance of the normal functions of body or mind’. Because this disease occurred before relevant amendments were made to the Act in 2007, the applicable test under then section 4 of the Act is whether the disease was contributed to, to a ‘material’ degree, by Mr Whitworth’s employment with the Commonwealth. In accordance with Comcare v Sahu-Khan [2007] FCA 15 at [16], the term ‘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’.
There was no documentary medical evidence before the Tribunal to support the contention that there was any contribution from Mr Whitworth’s employment to the disease of dental caries. The medical evidence demonstrates that Mr Whitworth’s dental caries developed over time and commenced prior to his enlistment with the Army in February 1996. Dr Joyce’s evidence to the Tribunal was that dental caries were not materially contributed to by Mr Whitworth’s employment with the Army and that the progression of this condition was contributed to by non-treatment of the pre-existing dental caries. That is, the causal factor was the failure to diagnose and treat the dental caries prior to enlistment. At the hearing, Dr Joyce told the Tribunal that dental caries occur when the tooth starts to decay, axiomatically being a gradual process. The fact that the Commonwealth may have known about Mr Whitworth’s dental caries on, or shortly after, his enlistment in the Army has no bearing on whether a claim meets the requisite statutory test under the Act to establish liability. Moreover, following the identification of dental caries at a dental examination following enlistment in February 1996, these were addressed through appropriate treatment in October 1996.
The Tribunal finds that Mr Whitworth’s fractured tooth constitutes an ‘injury’ under the Act, pursuant to the test adopted in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May) at [52], being whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. As stated in May at [53], if there is ‘an “injury” in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee's employment by the Commonwealth?’ That is, to establish liability under the Act an employee must have suffered an injury that arose out of, or in the course of, their employment.
The Tribunal was necessarily disadvantaged in its consideration of the evidence given the passage of time between the claimed injury in 1996 and Mr Whitworth’s claim for compensation made to DVA in 2020, a period of 24 years. Mr Whitworth gave evidence that he was unaware until 2020 that he was considered a ‘veteran’ and able to make a claim for compensation for an injury during his Army service. There was no evidence to support or disprove this claim and the Tribunal makes no finding in relation to this matter in circumstances where it is not determinative of the application.
Dr Joyce told the Tribunal his statement that Mr Whitworth fractured his tooth sometime in July 1996 was based on Mr Whitworth’s claim. He agreed that there was no contemporaneous evidence before the Tribunal to support the contention that Mr Whitworth fractured his tooth while eating in July 1996. The documentary evidence points to an issue with Mr Whitworth’s tooth 26, identified shortly after his enlistment in February 1996, which was addressed through dental surgery in October 1996. There was no documentary record of the incident claimed to have caused the fracture in July 1996, including in dental records from the time the issue with tooth 26 was addressed by way of dental work in October 1996, which do not mention any tooth fracture but merely a complaint of pain. Despite this, even if Mr Whitworth did feel pain in his tooth in July 1996, the medical evidence was that this could have been the first time the pre-existing issues with that tooth became symptomatic, although this is unclear given the passage of time. As a result, based on all the available evidence, the Tribunal is not satisfied that Mr Whitworth sustained an injury that arose out of, or in the course of, his employment with the Commonwealth, as required under the Act.
In this regard, Dr Joyce gave evidence that, even if the tooth was fractured at this time, which was during Mr Whitworth’s employment with the Commonwealth, the injury did not arise out of, or in the course of, his employment with the Army because it was caused by the pre-existing gross caries as diagnosed on 29 February 1996, being a non-employment factor. Therefore, the fracture of Mr Whitworth’s tooth was caused by non-treatment of the pre-existing dental caries.
The additional available medical evidence merely strengthens the position propounded by the Respondent through Dr Joyce’s expert evidence. In this regard, the dentist attended by Mr Whitworth in 2021, Dr Gupta, reported that the onset of the condition was in approximately March 2019.[51] That is, some 23 years after the claimed injury in 1996. In addition, and while not attributing significant weight to this opinion given it was from a Dental Advisor with DVA, that opinion confirmed Mr Whitworth had tooth decay, or ‘caries’, upon enlistment in February 1996, which was confirmed by Dr Joyce.[52]
[51] Exhibit 1, T16.1, page 56.
[52] Exhibit 1, T20, page 67.
Furthermore, Mr Whitworth’s dental records do not record any fracture of a tooth in 1996. They only refer to his complaints of pain in the tooth, which is consistent with the medical evidence that it was decaying and became symptomatic. There is no further record of any issue with tooth 26 after the dental filling in October 1996. It was not mentioned in questionnaires completed by Mr Whitworth, including medical questionnaires and his discharge record from the Army. The Tribunal does not accept the submission that this issue was not recorded because Mr Whitworth was told he would not be discharged if there were any unresolved medical issues noted in the paperwork. On his own evidence, Mr Whitworth completed this discharge form before attending the required medical assessment, he had noted a knee condition on that form, and was subsequently told to record on that form that this condition had resolved in order to be discharged. It was unexplained why any issue with his tooth was not also recorded at this time and, if required for discharge, there be a record of this entry being subsequently amended so as to permit his discharge from the Army.
There was no expert evidence to contradict Dr Joyce’s opinion and in support of Mr Whitworth’s position.[53] That is, Dr Joyce’s expert evidence was unchallenged by any other medical evidence in this proceeding. The Tribunal gave careful consideration to all of the available evidence and accepts the evidence of Dr Joyce. It accords with the available contemporaneous medical evidence before the Tribunal. The evidence of both Mr Whitworth and Mr Hawkes regarding the place and timing of the claimed incident does not displace the expert evidence regarding the cause of Mr Whitworth’s conditions, noting also that Mr Hawkes did not witness the claimed incident. The lack of contradictory medical evidence, where such evidence can be determinative of the issues in dispute, is a factor weighing heavily against Mr Whitworth’s application, especially in light of the strength of the medical evidence weighing against his claim, which evidence has been accepted by the Tribunal.
[53] Oliver and Comcare [2018] AATA 1964 at [71].
As stated in Oliver and Comcare [2018] AATA 1964 at [77], uncontradicted medical opinion from qualified experts denying a connection with employment ‘would normally prove fatal to a claim of this kind’ and an ‘applicant’s self-assessment of that connection would rarely displace such opinion’. So it is in this proceeding. For the aforementioned reasons, the Tribunal is not satisfied that Mr Whitworth’s conditions meet the legislative requirements to make the Respondent liable to him under the Act. That is, Mr Whitworth’s conditions neither arose out of, or in the course of his employment with the Commonwealth nor were they contributed to, to a material degree, by that employment.
For completeness, the Tribunal finds that there has been no ‘aggravation’ of either an injury or disease under the Act. As set out above, then section 4 of the Act refers to ‘aggravation’ being an acceleration or recurrence of an ‘ailment’. Based on the evidence, there was no aggravation of any injury or disease.
Additionally, the Tribunal finds that Mr Whitworth’s contention that a recommendation for root canal therapy was ignored cannot be sustained. The documentary evidence demonstrates that, in 1996, it was recorded that Mr Whitworth ‘may require RCT’ after the necessary dental treatment was performed in October 1996.[54] Based on the available evidence, there was no recommendation, at that time, for root canal therapy to be performed on Mr Whitworth, merely the suggestion that root canal therapy may be required in the future.
[54] Exhibit 1, T3, page 15.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
..........................[SGD]..............................................
Associate
Dated: 16 February 2023
Date(s) of hearing:
1 February 2023
Date final submissions received
10 February 2023
Applicant: In person
Solicitor for Respondent:
Mr William Evans, Australian Government Solicitor
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