Woolford and Military Rehabilitation and Compensation Commission (Compensation)

[2024] AATA 3397

Woolford and Military Rehabilitation and Compensation Commission (Compensation) [2024] AATA 3397 (25 September 2024)

Division:GENERAL DIVISION

File Number:          2023/0684

Re:James Woolford

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Member A McLean Williams

Date:25 September 2024

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by a Delegate of the Respondent on 11 January 2023.

................[SGD].....................

Member A McLean Williams

Catchwords

WORKERS COMPENSATION- member of Citizen Military Forces – Australian Army – seeking compensation for multiple conditions – whether claimed conditions suffered by the Applicant – where the claimed conditions first suffered during time in the Australian Army – whether Respondent liable to pay compensation – whether time in the Australian Army contributed to the Applicant’s claimed conditions - Tribunal finding against the Applicant – decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

REASONS FOR DECISION

Member A McLean Williams

25 September 2024

PRELIMINARY

1. On 2 February 2023 the Tribunal received an Application for Review[1] from the Applicant, Mr James Woolford, seeking the review of a decision by the Military Rehabilitation and Compensation Commission (‘the Respondent’) made on 11 January 2023, that had affirmed prior determinations by the Respondent which had denied any liability for
   

   [1] T1.

   Mr Woolford’s claimed conditions pursuant to the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (‘the DRC Act’).

2. Mr Woolford served in the Citizen Military Forces (‘CMF’) as part of the Australian Army from 14 August 1962 until 14 April 1964.

3. Mr Woolford has made claims under the DRC Act in relation to the following conditions (‘the claimed conditions’) all of which he says are related to his military service:

   ·Lower back[2]/lumbar spondylosis[3]/back[4];

   ·Neck[5];

   ·Left arm[6];

   ·Sore shoulder[7]/shoulder[8]/chronic tear of the right long head of biceps with muscle atrophy[9];

   ·Left leg[10]/leg[11]/osteoarthritis of left knee and complex baker cyst[12].

   [2] R2 – T5.

   [3] R2 – T5.

   [4] R2 – T12.1 & T20, p.64.

   [5] R2 – T10, T12.1; T20, p.63; & T21.

   [6] R2 – T21.

   [7] R2 – T20.

   [8] R2 – T21.

   [9] R2 – T20; & T21.

   [10] R2 – T20, p.63.

   [11] R2 – T20; & T21.

   [12] R2 – T20, p.64.

   RELEVANT FACTUAL BACKGROUND, AND CHRONOLOGY

4. On 25 February 2008, Mr Woolford made a claim for compensation for lumbar spondylosis.[13] On the claim form, Mr Woolford stated that he had injured his lower back during a compass navigation course on 14 August 1963 when he had fallen through bushes, approximately five metres to the ground.

   [13] R2 – T5.

5. On 6 May 2008, a Mr John Leonard Graham provided a statutory declaration[14] in support of Mr Woolford.

   [14] T12.2.

6. In the statutory declaration, Mr Graham indicates that in 1960 to 1963 he was the Assault Pioneer Platoon Sergeant with 1RQR, and he recalls Mr Woolford as a private in that platoon.  In May – June 1963, Mr Graham recalls that 1RQR went on bivouac to the Mount Byron State Forest west of Brisbane, where training was conducted. In his statutory declaration, Mr Graham states that Mr Woolford was part of a section headed by a Corporal Hoy (now deceased). Corporal Hoy’s section (including obviously Mr Woolford) had been sent out early one afternoon to complete a compass navigation and patrol exercise. In the evening on that same day, concerns were being expressed that Corporal Hoy’s Section had still not returned from the exercise. Eventually, Corporal Hoy’s section returned to base much later than had been anticipated, at about 2000 hours, whereupon Corporal Hoy had informed Sergeant Graham that the section had experienced difficult and lengthy delays, when attempting to navigate through very large copses of lantana.

7. Corporal Hoy also told Sergeant Graham that Private Woolford had fallen on a rock while trying to traverse through the lantana. Mr Graham recalls that Private Woolford did not receive any treatment from the RAP (Regimental Aid Post) that evening, yet recalls being advised by Mr Woolford the following morning that his back was still sore.

8. There is no documented evidence in Mr Woolford’s service medical records to show that he sought medical treatment for a sore back referable to a fall during a training exercise.

9. On 30 June 2008, a Delegate of the Respondent denied liability for lumbar spondylosis.[15]

   [15] R2 - T9.

10. On 10 November 2017, Mr Woolford lodged a second claim for compensation for lumbar spondylosis affecting his lower back and neck.[16] On the claim form, Mr Woolford alleged that the injuries had occurred in May 1963, and he had reported his injury to his section leader, Corporal Hoy. At the time, Mr Woolford said that he had been completing a compass navigation course when he ‘fell through bushes approx. 5 metres to the ground’.

    [16] R2 – T10.

11. On 7 December 2017, a Delegate of the Respondent declined to decide the claim on the basis that Mr Woolford had previously made a claim for lumbar spondylosis, and the prior claim had already been determined.[17]

    [17] R2 – T11.

12. On 17 January 2018, Mr Woolford requested a re-consideration of the determination made on 30 June 2008.[18]  In a letter of that date (enclosing by way of cover the statutory declaration made by ex-Sergeant Graham), Mr Woolford explained that had sustained an injury to his back and neck while attempting to navigate through and around very large copses of lantana. Mr Woolford says that in the process he fell onto a rock, and thereby injured his back and neck. Mr Woolford stated that he did not receive any treatment at the Regimental Aid Post, but claims that he went to see a doctor, the following morning. As indicated, there is nothing in Mr Woolford’s contemporaneous service medical records to show that he saw a doctor for a back or neck injury. 

    [18] R2 – T12.

13. Over the following years, Mr Woolford claims to have experienced quite a bit of pain in his back and neck, for which has been treated by various doctors. Mr Woolford concluded his letter on 17 January 2018 by stating:

    ‘I do feel that the statutory declaration provided should be enough evidence that this injury did occur. I think that the granting of a “White Card” would be of great assistance to me at this time of my life.’

14. On 13 March 2018, a Delegate affirmed the prior determination dated 30 June 2008. The Delegate was not satisfied that there was sufficient evidence of a connection between
    

    [19] R2 – T15.

    Mr Woolford’s lumbar spondylosis condition and his military service.[19]

15. On 20 January 2021, Mr Woolford made a claim for compensation for ‘left arm, shoulder, leg and neck’.[20]  On this occasion, the application form specified that Mr Woolford had sustained injuries during a ‘fall over cliff while negotiating a compass course’ at approximately 3PM sometime in 1962.  The form indicated that the injury had been reported to Sergeant Graham on the same day as the fall.

    [20] R2 – T21.

16. On 18 March 2022, a Delegate declined to decide Mr Woolford’s claim for compensation for ‘neck’, on the basis that Mr Woolford had previously made a claim for a neck condition which had already been determined.[21]

    [21] R2 – T22.

17. On 28 March 2022, a Delegate denied liability for Mr Woolford’s claimed conditions of ‘shoulder, back and leg’.[22]

    [22] R2 - T23.

18. On 7 April 2022, Mr Woolford requested re-consideration of the determinations dated 18 March 2022 and 28 March 2022.[23]

    [23] R2 – T24.

19. On 11 January 2023, a Delegate affirmed the determinations of 30 June 2008[24] and 28 March 2022,[25] and denied liability for all of Mr Woolford’s claimed conditions.[26]. It is this decision that Mr Woolford now seeks to have further reviewed, before the Tribunal.

    [24] R2 – T9.

    [25] R2 – T23.

    [26] R2 – T1.1.

    ISSUES FOR THE TRIBUNAL

20. The Tribunal must decide:

    ·when Mr Woolford first suffered the claimed conditions, and whether he now continues to suffer from the claimed conditions;

    ·whether Mr Woolford’s military service contributed to the claimed conditions; and

    ·by reference to the date of onset for those conditions, whether any service contribution is either to a ‘material degree’ or a ‘significant degree’.

21. Mr Woolford’s military service records establish that he was a member of the CMF from
    14 August 1962 until 14 April 1964.[27] Those service records further establish that
    

    [27] R3 – ST1.

    [28] R3 – ST2.

    Mr Woolford was not suffering from any of the claimed conditions at the time of his first enlistment.[28]

22. In a letter dated 25 January 2023,[29] Mr Woolford says that his injuries of ‘lower back, neck, shoulder - left rotator cuff syndrome, degenerative tear to right long head of biceps, left knee osteoarthritis, (and) left knee Baker’s cyst’ all resulted from a fall he had during Army service, ‘in 1962’.

    [29] R2 – T1.2.

23. In the claim made for lumbar spondylosis dated 25 February 2008,[30] Mr Woolford says that this happened on 14 August 1963 at about 6:30 PM when he was undertaking a compass (training) course and he sustained an injury after falling through bushes and falling approximately five metres to the ground. Mr Woolford says that this occurred at Mount Chicken, near Brisbane, when he was posted to the Assault Pioneers.

    [30] R2 – T5.

24. In the claim for lumbar spondylosis and neck dated 10 November 2017,[31] Mr Woolford says that the injury happened in May 1963 and that he reported the injury to Sergeant Graham at the time.  Mr Woolford said he was completing a compass course when he fell through bushes falling approximately 5 m to the ground. He was carrying a full army pack, compass, maps, and a rifle. He says that this injury occurred at the Mount Byron State Forest, in Brisbane.

    [31] R2 – T10.

25. In the claim for compensation for left arm and shoulder, leg and neck, dated 20 January 2021,[32] to Woolford says that he was injured when he fell over cliff while negotiating a compass course, at about 3PM in 1962. Mr Woolford said that these dates were only approximate, given that the injury had occurred more than 50 years ago.

    [32] R2 – T21.

    MEDICAL EVIDENCE:

26. Mr Woolford now seeks to rely upon evidence[33] from his general practitioner, a Dr Abiodun Aro, who reports in a DVA Injury or disease details sheet that Mr Woolford’s conditions of lumbar spondylosis; degenerative tear of right long head of biceps; left knee osteoarthritis with left knee Baker’s cyst all became manifest on approximately 10 October 1975.[34]  The Tribunal notes that Mr Woolford was first seen by Dr Aro on 9 June 2020, and that Dr Aro has not provided any other reports regarding Mr Woolford’s condition.  The Tribunal is not able to accept Dr Aro’s opinion regarding the commencement date for Mr Woolford’s condition, as it has no discernible basis, and that date is one seemingly “plucked from the air” by Dr Aro.

    [33] R2 – T20.

    [34] In the event that Mr Woolford’s orthopaedic conditions commenced on that date his claim would fall to be determined under the Compensation (Commonwealth Government Employees) Act 1971: s.124(2)(c) of the DRC Act.

27. Mr Woolford was examined by Dr Khursandi, orthopaedic surgeon, on 29 August 2023.
    Dr Khursandi has since provided a report on that examination dated 13 September 2023.[35]  In Dr Khursandi’s opinion, Mr Woolford now suffers from the following orthopaedic conditions:

    ·Cervical spondylosis;

    ·lumbar spondylosis;

    ·rotator cuff tendinopathy of the right shoulder with biceps tear and osteoarthritis;

    ·rotator cuff tendinopathy of the left shoulder; and

    ·osteoarthritis of the left knee, with an associated Baker’s cyst.[36]

    [35] R5.

    [36] R5, p.10.

28. In Dr Khursandi’s opinion, is not possible to provide a specific date for the onset of any of Mr Woolford’s diagnosed conditions due to the nature of those conditions, Mr Woolford’s generally poor recollection of the onset of his symptoms, and of the various treatments that he has sought from the medical profession for them, over time.[37]

    [37] R5, R7.

29. In Dr Khursandi’s further opinion, the incident that had been described to him by Mr Woolford in which Mr Woolford claims to have fallen approximately five metres during a compass training exercise would not have given rise to the diagnosed conditions.

30. Insofar as Mr Woolford claims to have suffered from a left arm condition Mr Woolford’s CMF service would not have been a significant factor precipitating for Mr Woolford’s current orthopaedic conditions, and Dr Khursandi considered that Mr Woolford’s period of military service would not have contributed in any significant extent to the orthopaedic conditions diagnosed by Dr Khursandi on  29 August 2023,[38] and these were more consistent with Mr Woolford’s age, general constitution, and a previous diagnosis of gout.[39]

    [39] R5, p. 11.

31. In a supplementary report dated 19 February 2024,[40] Dr Khursandi confirmed that he did not attribute any of Mr Woolford’s diagnosed conditions of cervical spondylosis; lumbar spondylosis; rotator cuff syndrome left shoulder; rotator cuff tendinopathy right shoulder with tear of the long head of the biceps; or osteoarthritis of the left knee with an associated Baker’s cyst to the fall that had been described to him by Mr Woolford; and that all of these conditions were constitutional, and age-related.  The Tribunal accepts the opinion of Dr Khursandi in preference to that expressed by the general practitioner, Dr Aro.

    [40] R7.

32. Perusal of the entirety of the medical evidence available to the Tribunal reveals that the earliest dates when Mr Woolford had sought medical treatment for the diagnosed conditions were as follows:

    ·5 August 2016, when Mr Woolford was referred for an x-ray of his left knee;

    ·1 August 2019, in a CT scan of Mr Woolford’s left knee confirmed the presence of a Baker’s cyst;

    ·8 June 2020, when a CT scan of Mr Woolford’s lumbosacral spine confirmed the presence of multi-level lower lumbar spondylosis;

    ·8 July 2020, when an x-ray and ultrasound of Mr Woolford’s right upper arm confirmed the fact of a ’chronic tear of the long head of biceps with associated muscle atrophy’;

    ·11 July 2021, when report of an MRI of the cervical spine for which Mr Woolford had been referred on 7 May 2021 revealed that Mr Woolford had had ‘moderate to significant spondylosis at multiple levels’.

    APPLICABLE LAW

33. The Respondent’s general liability to pay compensation arises under section 14 of the DRC Act, which 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.’

34. ‘Injury’ is defined in section 5A(1) of the DRC Act as follows:

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

35. A ‘disease’ is defined in section 5B(1) of the DRC Act to mean:

    (a)An ailment suffered by an employee, or

    (b)an aggravation of such an ailment

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth.

36. An ‘ailment’ is only compensable under the DRC Act if there is the required degree of service contribution: DRC Act section 5B, which provides:

    (2)  In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth, the following matters may be taken into account:

    (a) the duration of the employment;

    (b) the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee's health.

    This subsection does not limit the matters that may be taken into account.

37. Mr Woolford has described his various ailments in layman’s terms. 

38. Insofar as Mr Woolford now claims to suffer from a ‘left arm condition’, none of the available medical evidence is supportive of that. Accordingly, no liability can arise pursuant to section 14 of the DRC Act for any left arm condition.

39. In the Tribunal’s opinion, Mr Woolford’s other ailments are more usefully described on the basis of the diagnosis provided by Dr Khursandi.

40. Although Mr Woolford claims to have originally sustained the injuries giving rise to his present ailments in either 1962, or in 1963, when he had fallen through a copse of lantana, and retired Sergeant Graham has a recollection of that, there is no evidence in Mr Woolford’s service medical records to show that he obtained any medical treatment at or shortly after the time of the claimed fall. In circumstances such as a claim of this type, it is section 7(4) of the DRC Act that determines when Mr Woolford sustained a disease.

41. Section 7(4) of the DRC Act provides:

    (4)       For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of the disease, on the day when:

    (a)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.

42. Section 7(4) of the DRC Act is clearly intended to act as a ‘deeming’ provision. The date of first medical treatment is the deemed date of the injury, even if the incident that gave rise to the injury was before the date of first medical treatment.  Although Mr Woolford claims to have seen a doctor on the day after his fall, there is no evidence to confirm that, such that the Tribunal must look for the first documented date when Mr Woolford sought medical treatment.

43. As the summation of earliest dates of medical treatment - as now set out by the Tribunal in paragraph [32] (above) - reveals, all of Mr Woolford’s diagnosed ailments are matters for which he first sought medical treatment on a date after 13 April 2007. In these circumstances, under section 5B of the DRC Act, an ailment is only compensable if military service contributed in a significant degree to the occurrence of that ailment. 

44. The available medical evidence does not support a finding that Mr Woolford’s military service has contributed in a significant degree to any of Mr Woolford’s orthopaedic ailments.

45. In these circumstances, the correct and preferable decision is that the reviewable decision dated 11 January 2023 must be affirmed by the Tribunal.

    DECISION

46. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by a delegate of the Respondent on 11 January 2023.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Member A McLean Williams

.................[SGD]................

Associate

Dated: 25 September 2024

Date of hearing:	30 April 2024
Representation for Applicant:	Self-represented litigant
Solicitor for the Respondent:	Ms Emma Hunt (Senior Lawyer)
Australian Government Solicitor