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

Woolley and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2019] AATA 1867 (12 July 2019)

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2016/3816

Veterans' Appeals Division )

Re: Lukas Woolley
Applicant

And: Military Rehabilitation and Compensation Commission
Respondent
CORRIGENDUM

TRIBUNAL:

Deputy President Dr P McDermott RFD

DATE of CORRIGENDUM:

15 July 2019

PLACE:

Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of Administrative Appeals Tribunal Act 1975, to alter a portion of the text at paragraph 169 of the decision to read as follows:
“… The opinion of two senior members of the medical profession (Dr Hughes and Dr Johnstone) that factor 6(g) of SoP No. 79 of 2010 has relevance to the veteran’s service in East Timor certainly assists me in concluding that the hypothesis is reasonable…”

……………………[SGD]…………………...
Deputy President Dr P McDermott RFD
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3816
Re:Lukas Woolley
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

Decision
Tribunal:Deputy President Dr P McDermott RFD
Date:12 July 2019
Place:Brisbane

The Tribunal varies the reviewable decision to provide that the Commission is liable under s 23 of the Military Rehabilitation and Compensation Act 2004 (Cth) in respect of the chondromalacia patella condition of the left knee of the veteran is a service disease: the reviewable decision is otherwise affirmed.
...........................[SGD].........................................
Deputy President Dr P McDermott RFD
Catchwords
VETERANS’ AFFAIRS – military compensation – claim for patellofemoral syndrome of right and left knee – where the veteran completed warlike, non-warlike and peacetime service in the Army – whether the veteran’s condition is a service injury or disease – where the veteran underwent weight bearing activities – decision under review varied – chondromalacia patella condition of the left knee is a service disease.
Legislation
Administrative Appeals Tribunal Act 1975
Military Rehabilitation and Compensation Act 2004
Veterans Entitlement Act 1986
Cases
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Gorton (2001) 110 FCR 321
Robertson and Repatriation Commission [1998] AATA 127
Stevens v Repatriation Commission [2018] FCA 1866
Youngnickel v Repatriation Commission [2004] FCA 1691
Secondary Materials
Statement of Principles No. 79 of 2010 – Chondromalacia Patella
Statement of Principles No. 80 of 2010 – Chondromalacia Patella
Statement of Principles No. 1 of 2019 – Chondromalacia Patella
Statement of Principles No. 2 of 2019 – Chondromalacia Patella
Review of Military Compensation Arrangement (Department of Veterans’ Affairs) (February 2011) Vol 2
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 July 2019
introduction

Mr Lukas Woolley, the veteran lodged with the respondent a claim under the Military Rehabilitation and Compensation Act 2004 (“the Act”) for compensation for his right and left knee pain, which has been considered by the respondent as ‘patellofemoral syndrome right knee and left knee’.
The veteran enlisted in the Australian Army (“Army”) when he was 17 years old and served for a period of over 8 years, from 25 July 2005 to 20 November 2013. In this time he served in three tours in East Timor, Iraq and Afghanistan. He was medically discharged in 2013 due to other accepted medical conditions, including his back condition. At the time of his discharge the veteran had rose to the rank of Corporal.
The veteran has completed warlike, non-warlike and peacetime service over the course of his employment with the Army. His ‘warlike service’ was performed between 24 November 2007 to 14 June 2008, and 17 February 2010 to 27 October 2010. His ‘non-warlike service’ was performed between 16 September 2006 and 19 March 2007. His ‘peacetime service’ was performed at all other times during his military employment.
claim history
On 12 April 2013 the veteran lodged a claim for compensation with the respondent for the acceptance of liability for four listed conditions: lower back injuries, hearing loss (tinnitus), right shoulder pain, and right and left knee pain.[1] In the attached Injury or Disease Details Sheet, the veteran stated that his right and left knee pain were caused by “extreme weight carriage”.[2]
[1] Exhibit A, T-Documents, T4.
[2] Exhibit A, T-Documents, T5.
On 9 October 2013 a delegate of the respondent made a determination on the veteran’s claim.[3] Liability was accepted for the conditions of tinnitus, right knee lateral sprain and intervertebral disc prolapse, but was rejected for all other conditions including patellofemoral syndrome of both the right and left knees.
[3] Exhibit A, T-Documents, T14.
The veteran applied for a reconsideration of this determination to the Veterans’ Review Board (“VRB”).
On 4 April 2016 the VRB affirmed the decision to refuse liability for the condition of patellofemoral syndrome of the right and left knees.[4] The VRB set aside all other aspects of the original determination, with the effect that liability was accepted for labral tear right shoulder, spondylolisthesis and lumbar spondylosis.
[4] Exhibit A, T-Documents, T18.
The veteran then applied for further review of the decision to this Tribunal.
legislative framework
In order for the veteran’s compensation claim to be accepted under s 23(1)(a) of the Act, the veteran’s condition must be a ‘service injury or disease’ within the meaning of s 27 of the Act.
Section 27 of the Act provides:
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i)the injury was sustained due to an accident that would not have occurred; or
(ii)the disease would not have been contracted;
but for:
(iii)the person having rendered defence service while a member; or
(iv)changes in the person's environment consequent upon his or her having rendered defence service while a member;
(d)the injury or disease:
(i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
As the veteran has performed defence service pursuant to s 6(1)(d) of the Act, this claim has to be determined according to the standard of proof outlined in subsections 335(1) and (2) of the Act.
Section 335 of the Act provides that:
(1)If a claim in respect of subsection 23(1) or (3) or 24(1) for acceptance of liability for a person's injury, disease or death relates to warlike or non-warlike service rendered by the person while a member, the Commission must determine that the injury is a service injury, that the disease is a service disease, or that the death is a service death, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
When there is no sufficient ground for making a determination
(2)In applying subsection (1) in respect of a person's injury, disease or death, related to service rendered by the person while a member, the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury is a service injury; or
(b)that the disease is a service disease; or
(c)that the death is a service death;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person while a member.
Section 337 of the Act provides that the onus of proof does not fall on either party.
Section 338 of the Act provides that a determination of whether a reasonable hypothesis exists must be made in accordance with any relevant Statement of Principles (“SoPs”) issued by the Repatriation Medical Authority (“RMA”). Section 341 of the Act confirms that the current SoP must be applied on review of a decision.
At the time of hearing, the relevant SoPs which were in force were Instrument No. 79 of 2010 – Chondromalacia Patella (warlike or non-warlike service) and Instrument No. 80 of 2010 – Chondromalacia Patella (peacetime service).
Prior to the hearing the respondent was aware that the RMA was currently investigating the medical condition of chondromalacia patella and after the hearing the RMA issued new SoPs in relation to chondromalacia patella being Instrument No. 1 of 2019 – Chondromalacia Patella (Reasonable Hypothesis) and Instrument No. 2 of 2019 – Chondromalacia Patella (Balance of Probabilities) both with a commencement date of 28 January 2019. Despite neither party advising the Tribunal of the RMA’s investigations or the new SoPs, the Tribunal became aware that the new SoPs were issued. In January 2019 the Tribunal then as a matter of procedural fairness allowed the parties to file submissions in relation to the new SoPs. The veteran’s representative submitted that the SoPs which applied at the time of the hearing should be relied upon. The respondent submitted that the new SoPs need to be applied.
The effect of Instrument No. 1 of 2019 – Chondromalacia Patella was that Instrument No. 79 of 2010 was repealed.[5] The effect of Instrument No. 2 of 2019 – Chondromalacia Patella was that Instrument No. 80 of 2010 was repealed.[6]
[5] Instrument No. 1 of 2019 – Chondromalacia Patella s 4.
[6] Instrument No. 2 of 2019 – Chondromalacia Patella s 4.
Section 7(2) of Instrument No. 1 of 2019 defines ‘chondromalacia patella’ as the:
“(a)… softening, fibrillation or erosion of the articular cartilage of the patella associated with recurrent or chronic patellofemoral pain; and
(b) excludes osteoarthritis of the patellofemoral joint.”
Instrument No. 1 of 2019 provides in s 9 that “at least one of the listed factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chondromalacia patella or death from chondromalacia patella with the circumstances of a person’s relevant service”. Instrument No. 2 of 2019 outlined that at least one of the listed factors in sections 8 and 9 must be related to the veteran’s service.
veteran’s evidence
The veteran has provided two statements: one dated 17 May 2013, which was written prior to his medical discharge and just after the veteran lodged his compensation claim;[7] and one dated 9 May 2017, which was written during these Tribunal proceedings.[8]
[7] Exhibit A, T-Documents, T7.
[8] Exhibit B, Applicant’s Statement dated 9 May 2017.
The veteran’s statement of 17 May 2013 outlines the following events:
·The veteran first experienced back pain while he was at “ARTC” on a bush exercise. He states, “I fell forwards over a small tree which bent my awkwardly (sic), and the pack I was carrying drove my back into a painful position.” He received medical treatment as a result of this incident.
·In 2006, while the veteran was receiving infantry training, he fell “awkwardly” while carrying a 30 kilogram pack. This caused “another painful injury”, which also resulted in medical treatment.
·The veteran was deployed to East Timor for six months in 2006, and experienced “minor back pain” throughout his deployment. However, he “did not endure large amounts of pack related tasks” during his deployment, and a few months after his return home his back pain “retreated”.
·In 2007, the veteran was deployed to Iraq for seven months. He was often on patrols for between 4 to 22 hours over a period of between 3 days to 3 weeks. He states that he was required to wear “complete combat load of body armour, helmet and webbing whilst being secured in via a four point harness/seat belt”. The veteran states that he experienced “extreme back and right shoulder pain throughout these tasks” and often found himself “in constant pain long after the patrol was over”. When he returned home he sought medical treatment and received x-rays which showed “slight scoliosis”. He also received some brief physiotherapy.
·In 2010, the veteran was deployed to Afghanistan for eight months. He was required to wear body armour, “combined with weight carriage of 65kg>” which caused him major shoulder and back pain. This body armour was subsequently replaced with another item due to the high injury rate. The veteran stated that their normal routine consisted of a minimum of 55 kilograms per patrol, and on average each patrol covered 10 kilometres. Throughout his deployment the veteran experienced “severe pain” in his back, right shoulder and both knees. He stated that he did not seek medical advice due to the remote location of his patrol base, and the reliance his team had on him as their second-in-command. The veteran stated that he sought medical advice for his back pain when he returned home, but did not mention his other injuries as he “did not want to cause doubt over my major injury”.
·In 2012, the veteran was training and completing a 10 kilometre pack march when he experienced a “very sharp pain that ran down my right leg and forced me to lay still on my back for approx 15 minutes”. He found that he could not stand upright in the days following that incident, and was “in constant pain”. He sought medical advice and was referred to a physiotherapist. The veteran found that physiotherapy was not giving sufficient pain relief, so he sought outside medical treatment in the form of osteopathy and acupuncture at his own cost. He stated that he continues to receive acupuncture, remedial massage and osteopathy at his own cost.
The veteran’s statement of 9 May 2017 outlines the following events:
·The veteran underwent 12 weeks of “basic training” at the Army Recruit Training Centre (ARTC) when he joined the Army. This involved strenuous physical training, and typically an Army recruit would be required to carry between 7 to 20 kilograms for a period of 2 to 9 hours per day. Recruits carried this equipment during “tactical movement” training and “forced marches”. The veteran explained that “tactical movement” involved “large frequencies of movements” such as kneeling, bending, climbing, jumping, falling, walking, running, diving and crawling, all performed while usually carrying equipment greater than 10 kilograms. The veteran further explained that “forced marches” are “swift paced continuous walks” that can vary between 3 to 8 kilometres at a frequency of once or twice per week.
·On 27 November 2005 the veteran began Initial Employment Training (IET), which involved 12 weeks of physical training prior to the commencement of his Infantry course in early 2006. He spent an average of three and a half hours per day conducting physical training similar to that described above. He was required to conduct “tactical movement” carrying 15 kilograms or more, for a period of 25 hours per week, and conduct “forced marches” carrying 30 kilograms for a period of 3 to 4 hours around three to five times per week.
·On 4 April 2006 the veteran spent around five months training in preparation for impending deployments. During this time he spent around 5 hours per day conducting physical training. Throughout this training he wore body armour and equipment weighing no less than 18 kilograms. The training included more than 20 kilometres of walking, running, patrolling, diving, climbing and carrying of additional equipment stores which totalled in excess of 20 kilograms shared between two people.
·On 16 September 2006 the veteran was deployed to East Timor for six months. During his deployment he walked on average 15 kilometres per day, while carrying up to 30 kilograms. He stated that there were a number of months he spent carrying his full equipment, food and water which weighed “no less than 48kg”. The equipment was carried up and down “extremely difficult terrain” for 7 to 12 hours per day.
·On 19 March 2007 the veteran returned to Australia and immediately began training for deployment to Iraq. He stated that the physical training “became more demanding” as the equipment they would need to carry weighed more. He trained for no less than 30 hours per week in body armour and with full equipment weighing no less than 25 to 40 kilograms.
·On 24 November 2007 the veteran deployed to Iraq. During his deployment he wore close to 30 kilograms for a total of 8 to 10 hours per day, whilst sitting or standing in the back of a vehicle. He stated that the soldiers spent a lot of time standing in motor vehicles, “using our knees and spines as shock absorbers”. He was also required to conduct a large number of foot patrols that required him to carry in excess of 30 kilograms for up to 10 kilometres.
·On 14 June 2008 the veteran returned to Australia. Upon his return he was immediately advised that he would be deploying to Afghanistan in eight months. He began “even more intensive training with even more equipment”. He carried roughly 35 kilograms in equipment and body armour for 10 to 20 kilometres per day on most days. In addition, his eight person team was required to share amongst themselves four 20 kilograms backpacks, which were carried on top of normal weights.
·On 17 February 2010 the veteran was deployed to Afghanistan for almost eight and a half months. During his deployment he carried a minimum of 55 kilograms per day for between 7 to 25 kilometres. He stated that each patrol lasted between 2 to 120 hours, during which time it was extremely rare to remove body armour and equipment unless you were sleeping. The veteran described the terrain in Afghanistan as “extremely rugged”. He stated that each patrol involved “taking a knee” at least 100 times, and required moving from a sitting position to a standing position at least 50 times. He was required to jump across ditches carrying his heavy weight at least 20 times per patrol. He was also required to conduct patrols at night time, having only one night vision goggle, which resulted in him often stumbling, falling on his knees and rolling on steep slopes where his knees or shoulders took the major impact.
·The veteran’s return from Afghanistan was listed in this statement as 27 November 2017, but at the hearing the veteran clarified that his return from Afghanistan was on 27 November 2010. He stated that, upon his return, he spent a year training soldiers and conducting ongoing physical training. He stated that he had “significantly reduced my training requirements due to the physical pain I was experiencing in my feet, knees, back, hips, shoulders and also my ears”.
·On 1 October 2011 the veteran took 12 months of unpaid leave from the Army. During this time he worked one very low-intensity, non-physical job for a period of three months.
·On 1 October 2012 the veteran continued his Army service. He stated that after his time off he determined that he needed to seek further medical treatment for his physical injuries and pain. He followed “military assigned physical rehabilitation programs”, but this led to a worsening of his physical conditions and restricted his movement. He stated that at this time his back pain “was most acute” and so, “due to a difficult medical system” he did not focus his attention on his knees.

In this statement the veteran stated that after his discharge from the Army he worked as a consultant in the utilities industry, but in late 2016 he “succumbed to the pain of my injuries” and took leave without pay to address his conditions. He explained that he experiences bilateral pain in his knees every day. He states that he cannot run or spend extended time standing or walking on uneven surfaces without experiencing severe pain.
The veteran gave evidence at the hearing that he was presently unemployed. The veteran was referred to his 2013 statement and asked to provide more detail about his overseas tours. He advised that while in East Timor, he was working 7 days a week. He gave evidence that during his deployment in Iraq, his duties “changed quite significantly”. He explained that his team started as a “mobility force”, meaning that they were mounted in vehicles, and patrols were about 20 kilometres; foot soldiers were also deployed on the ground while the vehicles kept moving. He stated that this changed, and he went from being in a 30 man patrol to a 5 man team, with a significant change in the type and amount of equipment he needed to carry and often being required to stay out in the desert for 5 days.
The veteran gave evidence that he usually worked around 9 hours per day, 5 days per week, when training for his Afghanistan deployment: however, he was often required to work longer hours, and he worked 24/7 when he was out in the field, which he estimated happened for about 7 to 8 weeks prior to his deployment.
The veteran was asked about the heaviest weight he carried while in Afghanistan. He explained that he often carried in excess of his body weight, which was 85 kilograms at that time. While he did not have access to scales, he recalls getting onto a helicopter on one occasion and having to take 10 kilograms off because he was not allowed to carry more than his body weight: therefore at that time, he was carrying around 95 kilograms of weight. He stated that the equipment he was required to carry was usually ammunition, bullets, batteries and survival items.
The veteran also gave evidence about the patrols conducted in Afghanistan. He explained that sometimes he had to perform extra tactical missions where his team had to take an extra 50 kilograms of specialist equipment. He stated that a “good” patrol distance was 12 kilometres, but it was not uncommon to work a 60 kilometre patrol in a day in 40 to 50 degree heat. He stated that the worst patrol he recalls was 67 kilometres. He further stated that on long patrols he and his team walked about 12 to 13 hours without a break.
During cross-examination the veteran confirmed the accuracy of his 2013 statement. He agreed that at the time of completing that statement he was primarily concerned with his back pain. The veteran was referred to the entry in his statement where he stated that while in East Timor he did not endure “large amounts of pack related tasks” and that his pain retreated following his return. To this the veteran responded, “… At that time in my career I was still struggling to admit to myself that I was actually being medically retired and to be quite honest with you I thought that this statement was going to help keep me in the military”. He could not recall what he was referring to when he mentioned that the pain retreated.
The veteran was asked about the receipt of medical treatment upon his return from Iraq. He stated that he was in disbelief that the x-rays did not show his injuries, and his injuries were not investigated to the extent that they should have been. He stated that the reference to “brief physiotherapy” was a half hour session every fortnight, which was “not enough”. He stated that this medical treatment was for “a couple of injuries”.
The veteran agreed that issues with his knees were not mentioned in this statement when he spoke about his tours in East Timor and Iraq, and that his reference to the Afghanistan tour was the first time in the statement that he referred to his knees. He confirmed that he did not seek medical treatment for his knees, or anything, when he returned from Afghanistan.
The veteran was referred to his statement that he did not “want to cause doubt over major injury”. He explained that by this he meant he did not want to cause doubt over his career, or his capabilities, as he wanted to remain in his career. He stated that he only sought treatment for his back issue because he was ordered to. He agreed that at that time his back injury was his biggest concern.
The veteran was referred to his post-deployment screen following the tour of Afghanistan.[9] He agreed that on that form, he had indicated ‘no’ to “unexplained joint or muscle pain”.
[9] Exhibit A, T-Documents, T3, at p. 246.
The veteran was asked about what he did while he was on leave between 1 October 2011 and 1 October 2012. The veteran stated that he took leave because his commanding officer suggested that he needed “to discover some things about a bunch of different things”, and suggested that he went to a ski hill. The veteran then went to a ski hill and worked as a ski lift operator in Canada with two other soldiers. The veteran was in Canada for around 9 to 10 months and worked for approximately 6 to 7 months. The veteran agreed that his job involved low intensity duties, and explained that he was responsible for supervising, making sure no one got caught on the lift, and pushing buttons to stop and start the lift.
The veteran was asked if he recalled seeing Dr Nusem in 2013, and he did. He stated that he was unhappy with the treatment and diagnosis that came from that appointment. He could not recall what he told Dr Nusem about his knee pain: however, he did agree that his knee pain could vary depending on what he had been doing. The veteran could not recall seeing Dr Doneley, or what he told him about his knee pain.
The veteran agreed that he was placed on medical restrictions on 7 November 2012. He stated that he complied with all medical restrictions.
medical evidence
Service medical records
An outpatient clinical record dated 2 June 2009 documents that on that day the veteran presented with “[right] knee pain and swelling”, and he injured his knee “during MSD yesterday”.[10] The record notes, “Pain in lateral area and swelling evident” and “Had previous injury to same knee 3-4 years ago”. A later outpatient clinical record dated 19 November 2009 documents the veteran presenting with “pain on raising knees from laying position”.[11]
[10] Exhibit A, T-Documents, T3, at p. 41.
[11] Exhibit A, T-Documents, T3, at p. 39.
On 15 February 2010 the veteran was declared medically fit for deployment.[12] An undated post-deployment health assessment conducted after the veteran returned from Afghanistan in late 2010 notes that the veteran was experiencing right and left knee pain.[13]
[12] Exhibit A, T-Documents, T3, at p. 10.
[13] Exhibit A, T-Documents, T3, at p. 32.
The veteran was placed on medical restrictions from 7 November 2012,[14] and remained restricted until the date of his discharge. The veteran’s employment restrictions were listed as:
[14] Exhibit A, T-Documents, T3, at p.216.
·No lifting of heavy weights;
·Physical training at own pace;
·Exempt physical fitness testing;
·Exempt combat fitness testing;
·No load carrying as defined (e.g. backpacks, open circuit compressed air breathing apparatus etc.);
·No route marches;
·Unfit ceremonial parades;
·Unfit weapons handling;
·Unfit to drive ADF vehicles; and
·Rehabilitation under medical officer’s direction.
An outpatient clinical record dated 19 April 2013 makes the following note: “Knees – intermittent. AKP”.[15]
[15] Exhibit A, T-Documents, T3, at p. 22.
A member’s health statement dated 29 April 2013 noted that the veteran had been medically downgraded, and that there was the possibility of a medical discharge.[16] It was also noted that the veteran was “very active in his rehabilitation”. An occupational rehabilitation progress report of the same date noted that the veteran consulted an osteopath weekly, as well as a massage therapist, at his own expense, and attended weekly physiotherapy through the Defence Force.[17] This report stated that the veteran experienced the most pain when walking, so he drove to work and used a bicycle to get around while at work.
[16] Exhibit A, T-Documents, T3, at pp. 200-202.
[17] Exhibit A, T-Documents, T3, at pp. 204-205.
A medical employment classification review record dated 22 May 2013 outlined the veteran’s clinical history, primarily with regards to his back pain, and also mentioned that he has “several other minor conditions which do not generally impact him a great deal”.[18] It was noted, “His knees and right shoulder cause mild symptoms and do not require active investigation or management”. The record also documents that, although he was “reluctant to separate” the veteran was looking at discharging from the Army and had been recommended as unfit to continue in an infantry role or forward combat role.
[18] Exhibit A, T-Documents, T3, at p. 194.
A medical employment classification advice document of the same date lists the veteran’s present employment restrictions, including:[19]
[19] Exhibit A, T-Documents, T3, at p. 191.
·Running own pace;
·No lifting of heavy weights;
·Exempt component of physical training;
·Physical training at own pace;
·No contact sports;
·Exempt physical fitness testing;
·Exempt combat fitness testing;
·No standing for more than one hour;
·Unfit repetitive bending or stooping;
·No load carrying as defined (e.g. backpacks, open circuit compressed air breathing apparatus etc.); and
·No route marches.
On 1 July 2013 the veteran signed a ‘Refusal to Consent to Health Treatment’ form, as he was requesting his rehabilitation program to cease.[20]
[20] Exhibit A, T-Documents, T3, at p. 81.
On 19 July 2013 the veteran underwent an x-ray of both knees, the results of which showed no fracture, dislocation, knee joint effusion, osteochondral injury or arthritis.[21]
[21] Exhibit A, T-Documents, T10.
On 26 July 2013 the veteran underwent an MRI of both knees.[22] The results of this test were normal, with no abnormalities detected. It was noted that there was “no convincing MR features of chondromalacia” and there was no apparent cause for the veteran’s symptoms.
[22] Exhibit A, T-Documents, T11.
A medical employment classification review board record dated 17 August 2013 documents the mutual decision that the veteran is not able to remain in the military and should be medically discharged due to chronic low back pain, high frequency hearing loss, bilateral anterior knee pain, right shoulder dysfunction and bilateral feet dysfunction.[23]
[23] Exhibit A, T-Documents, T3, at p. 29.
From 28 August 2013, the veteran’s physical restrictions were listed as:
·No lifting of heavy weights;
·Physical training at own pace;
·Exempt physical fitness testing;
·Exempt combat fitness testing;
·No standing for more than one hour;
·Unfit repetitive bending or stooping;
·No load carrying as defined (e.g. backpacks, open circuit compressed air breathing apparatus etc.); and
·Unfit ceremonial parades.
On 17 September 2013 the veteran signed an acknowledgement of his medical discharge.[24]
[24] Exhibit A, T-Documents, T3, at p. 189.
Prior to the veteran’s discharge he completed a comprehensive preventive health examination.[25] In response to the question: ‘Have you had any persistent back or joint pain’ the veteran answered “low back pain, both knees, right foot, right shoulder”. In response to the question: ‘Do you have any current illnesses or injuries’ the veteran answered “arthritis right foot, both knees, shoulder, 2 bulging and 1 protruding disc”.
[25] Exhibit A, T-Documents, T3, at p. 176.
An invalidity retirement from the defence force medical information form dated 11 October 2013 lists the following medical conditions which led to the veteran’s medical discharge:[26]
·Back pain (chronic);
·Hearing impairment (L) and tinnitus – minimal loss;
·Anterior knee pain (bilateral);
·Right shoulder AC joint dysfunction; and
·Bilateral foot pain (R) predominant.
[26] Exhibit A, T-Documents, T3, at pp. 25-26.
The form states, “back pain causes main limitation…daily pain experienced” and “minimal impairment from knees/ shoulder/foot if avoid strenuous work, excessive walking/running”.
In a Separation Health Statement dated 21 October 2013 “right and left knee pain” was again listed as a current injury, and the veteran indicated that his right and left knee pain was experienced daily.[27] The veteran in response to the question: ‘Have you made a claim under the Department of Veterans’ Affairs or had liability accepted by any other agency for any of the above conditions’ ticked ‘yes’ noting that “not all conditions have been lodged”. [28]
[27] Exhibit A, T-Documents, T3, at pp. 23-24.
[28] Exhibit A, T-Documents, T3, at p. 24.
Medical Opinions of Dr Nicoll dated 17 May 2013 and 16 September 2013
In the medical opinion of Dr Nicholl dated 17 May 2013, he diagnosed the veteran as follows:
“Right shoulder pain of unknown origin. Though there is a claim for shoulder pain in 12/4/13, the periodic health examinations of 12/7/06, 1/08/07, 23/9/08, 9/9/09, 25/10/10, 8/4/11 and 8/10/12 declare no injuries of the shoulders.
Right trapezius muscle strain for which the RMA instruments concerning ‘sprain and strain’ being Nos 94, 95 of 2011 are relevant. Noted in 14/11/05 and diagnosed by physiotherapist. Clinical onset is ill specified, since the physiotherapist stating that the complaint has been present on and off for the past 2 weeks with the earlier entry of 14/11/05 stating it had been present since week 2 of entry.
Note that the veteran reported in 14/11/05 that he had a previous right shoulder injury 18 months previously which would make it May 2004 prior to military service, which required lengthy physiotherapy of 6 weeks duration.”
In the medical opinion of Dr Nicholl dated 16 September 2013, he diagnosed the veteran as follows:
“Left knee pain of unknown origin. This is a symptom and not a disease or injury. Note that the MRI [Magnetic resonance imaging] scan of 26/7/13 reported no abnormality and this finding was also confirmed by the forensic orthopaedic surgeon Dr Nusem in 15/8/13. Note that Dr Nusem’s diagnosis of patellofemoral syndrome, is not a disease or injury but a symptom of pain in the patellofemoral joint.
Note that there is no report of left knee problems oar (sic) pain on the copy of provided military medical documents and the periodic health assessments of 12/7/06, 12/3/07, 1/8/07, 2/6/08, 23/9/08, 9/9/09, 6/10/09, 1/2/10, 25/10/10, 8/4/11, 8/10/12 do not report a knee problem.
Pes Planus valgus both feet – Congenital or Acquired for which RMA instruments concerning ‘Pes Planus’ being Nos 45, 46 of 2012 are relevant. Diagnosed by Dr Duncan in 30/11/05. This is likely to be pre-existing prior to military service given its bilateral nature and the absence of any reported injury to the feet.”
Report of Associate Professor Iulian Nusem dated 15 August 2013
Dr Nusem provided a report on 15 August 2013 at the request of the respondent.[29] In this report Dr Nusem confirmed that he had reviewed the x-rays and MRIs of the veteran’s knees dated 19 July 2013 and 26 July 2013 respectively.
[29] Exhibit A, T-Documents, T12.
Dr Nusem recorded that the veteran described “anterior knee pain”. He stated, “He relates this pain to his first tour to Afghanistan when he believes that the pain got worse with his second tour to Afghanistan”.
Dr Nusem incorrectly recorded that the veteran was discharged from the Army on November 2011, and referred to the veteran incurring his injury about eight months after he joined the Army.
Dr Nusem described the veteran’s knee pain as occasionally sharp pain, but mostly a “dull ache”. It was noted that there were no episodes of giving way or locking. Dr Nusem stated that the veteran graded his right knee pain as 4/10 and his left knee pain as 2/10. He indicated that the veteran had never sought “formal” treatment for his pain.
Dr Nusem recorded that the veteran’s symptoms prevent him from standing or sitting for long periods of time and carrying heavy weights, and also make it difficult to run or play sport.
Dr Nusem diagnosed the veteran with “patella-femoral syndrome” in his right and left knees. He did not indicate a date of onset for the condition, but stated “all conditions occurred during [the veteran’s] army service” and opined that the probable cause of the condition was “duties required from an infantry soldier”. Dr Nusem opined that the condition had no effect on the veteran’s ability to work.
Report of Dr John Doneley dated 9 January 2014
Dr Doneley provided a report dated 9 January 2014 at the request of the respondent.[30] In this report Dr Doneley stated that the veteran “could recall no specific trauma to either his lower back or to his right knee. He stated that he has developed pains in both of these regions over the course of his Army career”. Dr Doneley recorded that the veteran recalled a blow to his knee while training in 2009, but his knee pain predated this injury “by some time”.
[30] Exhibit A, T-Documents, T16.
Dr Doneley noted that the veteran experiences occasional clicking from his knees, but this does not “limit his ability to perform any activities”. The veteran reported no swelling, locking or giving way of his knees.
The veteran advised Dr Doneley that, “although his knee pains are bothersome it is his back complaint which is the predominant issue for him currently”. Dr Doneley noted that the veteran had not undertaken any active treatment for his right knee to date.
Dr Doneley diagnosed the veteran with “anterior right knee pain”. He considered that the right knee condition does not incapacitate the veteran from work.
Go2Health records
The veteran first attended Go2Health on 14 April 2014.[31]
[31] Exhibit J, Surgery Consultation notes regarding the Veteran dated 19 December 2016.
On 11 July 2014 the veteran reported a bilateral knee ache.
On 29 July 2014 the veteran reported shoulder and bilateral knee pain. It was noted:
“MOI = ?2010 Afghan… R sh sore since afghan (sic) 2010 - ? from armour/knocks… impr sh - ? weakened RC post injuries in Afghan – scap dyskinesis… impr – inc femur/tibia transl – inc movement to control – m fatigue – loading into jt – ache ? quad tight – compr patella onto femur – ache kn”.
On 11 October 2014 the veteran reported “back been bad”. On 18 October 2014 it was noted that the veteran had run again for 2 kilometres “ok the next day”.
On 17 December 2014 it was noted that:
“back has tightened up.
feeling sore with any sore (sic) of movement
getting tightness through gluts, and sciatic referral into gluts.
would like the report from Cam for his shoulder and knees.”
On 17 January 2015 it was noted:
“back tight and sore but still running
R sh impr w strengthening and same with knees”.
On 27 February 2015 it was noted:
“Back pain has reduced, running 3km every 2^nd day. Playing tennis however glut med continually needing release work (++tight).”
On 3 March 2015 it was noted:
“running consequtive (sic) days a few times now without any inc symptom”.
On 11 April 2015 it was noted:
“knees been acheing (sic)
sh sore post gym then sitting @ desk… Lx been pinching but not much constant pain”.
On 18 April 2015 it was noted:
“training going well 15kg pack with not much increase pain
still getting sharp pains in Lx”
On 21 April 2015 it was noted:
“spondylosis
knee fissuring
likely shoulder SLAP
…
issues with sleep”
On 8 May 2015 it was noted:
“intervertable (sic) disc prolapse (back)”

On 1 September 2015 it was noted:
“achilles pretty much gone”.
On 26 October 2015 it was noted:
“lower back pain, feels like it starts in hips
…
2 years out of the army
did have a lot of trouble with shin splints when in but not so much now
does get tight calfs (sic) when he starts to run
…
R knee tight”.
On 21 November 2015 it was noted:
“back pain been minimal…worst pain in shoulders, R knee sore with going up steps ant (sic)”.
On 23 November 2015 it was noted:
“…knee pain is still present during deeper squats
has been practicing squatting a lot and feels improved pelvic control”.
On 24 November 2015 it was noted:
“bilat knees now approved + spondylosis not SPL”.
On 4 November 2016 it was noted:
“back pain is present today, banding type pain across the lower back
bilateral knees are also sore in crouching and squatting
activation of R QL and left psoas improved knee pain to the point of no pain during squatting.
program to be developing (sic) around core strength and post chain patterning for improved squatting technique
pt would like to be able to surf without pain or having to do a lot of release work after each bout of exercise.”
On 11 November 2016 it was noted:
“back and knees have been feeling quite good since last visit.”
On 19 December 2016 it was noted:
“right lateral knee strain”.
Reports of Dr Craig Hughes, orthopaedic surgeon dated 28 February 2015 and 18 July 2016
Dr Hughes has provided two reports at the request of the veteran, including one dated 28 February 2015.[32] In this report Dr Hughes stated that the veteran developed knee pain “while serving in the military”. He described the pain as being positioned “anterior and inferior in the knee and sometimes on the lateral aspect of the patella”. The veteran reported that he experienced the pain with squats, which started as a sharp pain and became an ache. The pain was reported to be a 3 out of 10 at worst over the past week, and was a 0 out of 10 on the day of the examination with Dr Hughes.
[32] Exhibit A, T-Documents, T17.
Dr Hughes noted that since his separation from the Army, the veteran had been resting from his normal physical activity and as such had experienced an improvement of his symptoms. He stated that functionally, the veteran has no pain using stairs, sitting, driving a car or walking.
Dr Hughes reported that the veteran has had no prior operations, injections or trauma to his knees, and there was no specific activity that had caused the onset of his knee pain. He opined that the veteran has “bilateral patellofemoral syndrome as a response to repetitive lifting, carrying heavy weights and squatting that was routine in the army…”
Dr Hughes provided a second report on 18 July 2016.[33] This report predominantly serves to repeat the contents of his first report, but in this report Dr Hughes concludes that the veteran has “bilateral chondromalacia patellae”.
[33] Exhibit C, Report of Dr Craig Hughes, orthopaedic surgeon dated 18 July 2016.
Dr Hughes also gave evidence at the hearing of this application and confirmed that he examined the veteran under referral from Dr Kieran McCarthy.[34] He also confirmed that the veteran reported no knee pain when going up stairs or driving.
[34] Exhibit K, Referral by Dr Kieran McCarthy to Dr Craig Hughes dated 13 January 2015.
During cross-examination Dr Hughes was asked about the two diagnoses he provided for the veteran’s condition. He stated that his original diagnosis of bilateral patellofemoral syndrome was “based on his symptoms of pain with squats and tightness and throbbing post activity”. He confirmed that his diagnosis changed in his July 2016 report, and stated that the two diagnoses can sometimes be used interchangeably. He indicated that he provided the second report based on the MRI results. When it was put to him that he had changed his opinion without seeing the veteran for a second time, Dr Hughes advised that he had simply changed the wording of his opinion to be more accurate, and this was based on the original imaging. He further explained that he did not change the diagnosis, but instead used different words for the same condition and acknowledged the fact that on the MRI findings there was “some signal change within the medial facet of the patella” and therefore it would be more accurate to diagnose the condition as chondromalacia patella.
Dr Hughes was asked to explain the difference between the two diagnoses. He explained that people can have patellofemoral syndrome without any radiological abnormalities, and they often get pain when loading the joint, when they are squatting or moving their knee: however, with chondromalacia patella you often get radiographic changes to the quality of cartilage under the kneecap. He stated that the symptoms can be very similar, as are the management plans, for example changing activities, the use of anti-inflammatories, and avoiding repetitive movements.
During re-examination the factors of SoP No. 79 of 2010 were put to Dr Hughes and he stated his view that his diagnosis of the veteran’s condition fits within factors (f), (g), (i) and (m) of the SoP No. 79 of 2010.
Reports of Dr Peter Johnstone, orthopaedic surgeon dated 14 February 2017, 3 July 2017 and 27 October 2017
Dr Johnstone provided three reports at the request of the respondent.
The first Report of 14 February 2017 addressed the veteran’s knee and right shoulder conditions.[35] In this report Dr Johnstone noted that the veteran reported his knee symptoms as beginning during his first tour of duty in East Timor in 2006 where during his deployment he was required to “carry heavy packs and walk up hills for up to four hours at a time”, which led to him getting knee discomfort in both knees. Dr Johnstone stated that the veteran did not experience any specific injury, and at the time the veteran thought that the discomfort was “just a normal part of his operational duties”. Dr Johnstone commented that the veteran’s knee discomfort was situated in “the retropatellar and peripatellar region more laterally”.
[35] Exhibit D, Report of Dr Peter Johnstone, consultant orthopaedic surgeon dated 14 February 2017.
Dr Johnstone reported that the veteran had a further injury to his knees in 2009, when he was showing an exercise as an instructor and another soldier’s head went into his right knee: this gave rise to “increased discomfort”. The veteran was diagnosed with a sprain.
It was documented that the veteran reported his knee symptoms as being worse since his medical discharge. The veteran had ceased work because of his knees and other conditions.
Dr Johnstone noted that the veteran was presently undergoing physiotherapy once every two weeks, exercise physiology once every week, and acupuncture. The veteran reported that the treatments reduced his pain for a short period but “his symptoms always return”. Dr Johnstone stated that, in terms of his discomfort, the veteran prefers standing to sitting, and when he rests his knee stiffens and then has “increased start up pain”. After a night of rest the veteran’s pain is reduced significantly. If the veteran is not active over a two to three week period then his symptoms reduce. Dr Johnstone noted that the veteran experiences some pain every day, graded by the veteran to be around 4 to 5 out of 10. Dr Johnstone stated that the veteran was taking pain medication because of his back, which the veteran reported to also help his knee symptoms: however, the veteran did comment that he would not take this medication if his knees were his only concern.
Dr Johnstone reported that the veteran can walk for 20 to 30 minutes before his knees experience increased soreness, and it takes up to two hours to ease this pain. Climbing stairs or hills “gives him the worst pains”. Dr Johnstone noted that the veteran was not presently undertaking sport because this worsens his pain, but the veteran can swim without any aggravation to his pain. The veteran also reported that driving and daily life activities that require extended walking aggravate his knee symptoms.
Prior to the writing of this report Dr Johnstone conducted a physical examination of the veteran and determined that both of the veteran’s knees had stable ligaments, no effusion and normal patellofemoral tracking, but had “mild tightness to the lateral retinacular structures”. He noted that the veteran’s right knee had “slight tenderness over the lateral joint line and lateral facet of the patella and had a mildly positive patellar grind test”. The left knee had “mild lateral patellar facet pain, positive grind test and minor crepitus”.
Dr Johnstone opined that the veteran “continues to have clinical symptoms of discomfort in both knees with activities of daily living and sporting pursuits”. Dr Johnstone confirmed that the veteran experiences discomfort in both knees, and shows signs of “early patellofemoral crepitus” in his left knee. However, Dr Johnstone noted that he “could not confirm any deterioration in knee function” and the veteran “has exceptionally well-muscled quadriceps muscles indicating that symptoms and pain from his patellofemoral joint are of a minor effect”. He stated: “I would expect more quadriceps muscle loss if his knees were truly significantly symptomatic”.
Dr Johnstone considered that the veteran:
“probably has tight lateral retinacular structures which is causing some pressure overload to the patellofemoral joint and hence his pain with activities. This pressure overload will eventually lead to structural damage to the patellofemoral articulation and this is clearly in the early stages in the right knee and slightly more progressive in the left knee as evidenced by the palpable crepitus on examination”.
Dr Johnstone stated that no surgical treatment was required at that stage.
Dr Johnstone stated that the veteran “suffers from anterior knee pain in both knees”. He noted the various diagnoses from Drs Nusem and Hughes, and stated that his own diagnosis that the veteran suffers from “chondromalacia patellae due to the crepitus identified on examination and ongoing pain”. He noted that this was confirmed in the veteran’s left knee, and as he suffers identical pain symptoms in his right knee “it is only a matter of time before he gets the palpable crepitus in the right knee”. In his report Dr Johnstone also clarified that the veteran suffers from “patellofemoral syndrome”, and stated that the terms “patellofemoral syndrome”, “anterior knee pain syndrome” and “chondromalacia patellae” are often used interchangeably: however, he also commented, “My personal opinion is that people should be labelled anterior knee pain syndrome when there is no evidence of structural damage to the chondral surfaces of the patella”.
Dr Johnstone referred to the relevant SoP stating: “He clearly has softening of the chondral surfaces of the patellofemoral joint in the left knee and this is likely to happen in the right knee as well with time and also due to his tour of duties in East Timor”. Dr Johnstone expressed his opinion that the veteran “meets the criteria to have his knees accepted as chondromalacia patellae”.
Dr Johnstone stated that the veteran’s knee conditions first arose in East Timor in 2006, and that his knee pain was “triggered by his military service”.
Dr Johnstone provided a supplementary Report of 3 July 2017.[36] In this report Dr Johnstone was referred to the definition of chondromalacia patella in the relevant SoP meaning “softening, fibrillation or erosion of the articular cartilage of the patella associated with recurrent or chronic patellofemoral pain”. Dr Johnstone stated that the veteran had “crepitus in both knees which is consistent with softening, fibrillation and erosion of articular cartilage of the patellae”, and stated that this is therefore evidence of chondromalacia patella. He noted that while the MRI scans conducted in July 2013 were reported as normal, “this may not reflect early softening, fibrillation or erosion of the patellar cartilage”.
[36] Exhibit E, Supplementary Medical Report of Dr Peter Johnstone dated 3 July 2017.
Dr Johnstone was asked to clarify comments in his first report relating to the veteran being “likely” to experience softening in his right knee in time. He stated: “At the time of my examination dated 20 January 2017 Mr Woolley had chondral damage to both the right and left knee patellofemoral articulations consistent with chondromalacia patellae”.
Dr Johnstone confirmed that the veteran reported that his knee pain began in East Timor in 2006, but stated, “I am unable to confirm the exact cause of his knee condition at that time”. He stated:
“I am only able to confirm that Mr Woolley’s symptoms in his knees arose as a result of his tour of East Timor in 2006. The pain that he was experiencing then is the same pain he experiences now. His symptoms have been now confirmed as chondromalacia patellae. The factors which resulted in his knee condition would be carrying heavy loads, walking up hills for up to four hours at a time, and his physical fitness regime with running, pack marching etc”.
Dr Johnstone also commented on his diagnosis of “tight lateral retinacular structures”, which he stated will aggravate or worsen patellofemoral chondromalacia and stated: “This is most likely due to the physical training and muscular strengthening of his quadriceps mechanism due to military service”.
Dr Johnstone was asked about the potential significance of the veteran’s leave periods in 2011 and 2013, his medical restrictions and medical discharge and he stated: “I do not consider the leave and medical restrictions significant in relation to the right knee and left knee chondromalacia patellae”.
In this report Dr Johnstone confirmed that his opinion remains that the veteran suffers from chondromalacia patella to both knees.
Dr Johnstone also provided a further supplementary Report of 27 October 2017.[37] Dr Johnstone completed this report after having reviewed the MRI and x-ray results from 2013.
[37] Exhibit F, Supplementary Report of Dr Peter Johnstone dated 27 October 2017, with attached Respondent’s letter of instruction to Dr Peter Johnstone dated 18 September 2017.
With respect to the 2013 MRI results, Dr Johnstone noted that the images were of “reduced quality” compared to today’s technology. He stated that the MRI “does not clearly show significant chondral damage to the patellae”. With regard to both knees, Dr Johnstone stated: “As a result of reviewing the MRI the appearance of the patella on the axial imaging, it is not possible to determine whether there is any softening, fibrillation or erosion of the articular cartilage. There would be a 5% error rate in respect of these findings.”
Dr Johnstone was referred to the comments of Dr Hughes that the MRI showed “some slight fissuring of the signal articular cartilage of the right patella on one slice” and “some change on the medial facet of the left patella”. Dr Johnstone commented that he was “not able to disagree with that probability, although the images appear to show intact cartilage”.
Dr Johnstone was asked to consider his opinion on the clinical onset of the veteran’s condition. He stated that the veteran, “at the time of the MRI which was undertaken for discomfort identified in both knees whilst he was on his military duties, can be said to have had anterior knee pain but the diagnosis of chondromalacia patellae was not definitely confirmed by the MRI scans of 26 July 2013”.
Dr Johnstone made the final comment that: “Although the MRI scans of 26 July 2013 do not clearly confirm the presence of articular cartilage damage that is required for the diagnosis of chondromalacia patellae under the Department of Veterans Affairs definition, it remains my opinion that his current symptoms and signs as seen in January 2017 are due to chondromalacia patellae and that process has definitely been initiated by his military service”.
Dr Johnstone also gave evidence at the hearing. He agreed that the best way to diagnose chondromalacia patella would be through a physical examination by an orthopaedic surgeon and an MRI. Dr Johnstone also agreed that there were standard orthopaedic tests which were used during a physical examination, and that he performed those tests on the veteran.
Dr Johnstone confirmed that chondromalacia patella is a condition which develops over time. He was asked about how the development of the condition led to restricted movement, and he explained that if there is pain in a person’s knee that will be the cause of restriction, rather than the fact that there is a worn chondral surface of the kneecap. He stated that the amount of pain experienced by a person was not always directly related to the amount of damage caused to the chondral surface. Dr Johnstone stated: “A person may have no obvious chondral damage but experience anterior knee pain… I prefer to call that anterior knee pain syndrome, because that advises that there’s an issue with pain but doesn’t necessarily dictate cause.”
Dr Johnstone advised that the veteran’s symptoms of chondromalacia patella were at the “minor to mild end of the spectrum”.
During cross-examination Dr Johnstone was asked about the treatment for chondromalacia patella. He advised that treatment normally centres on non-operative measures such as simple analgesics to limit pain, so that the person may undertake strengthening exercises with the aim of reducing the load on the outer facet of the patella, which is often the part of the kneecap that actually causes the pain.
Dr Johnstone was asked about the MRI scans performed on the veteran’s knees. He stated that the literature reflects that there can be anywhere up to 25 per cent of disagreement regarding MRI findings and clinical findings.
Dr Johnstone was also asked about whether diagnoses for knee pain were still used interchangeably. He stated that it has been accepted that these terms are interchangeable, but with the increase in MRIs being able to confirm that there is no chondral issue, the term chondromalacia patella is starting to not be used unless there is definite damage to chondral surfaces so other terms are used to describe the nature of the symptoms but do not necessarily ascribe symptoms to a particular cause.
Dr Johnstone confirmed that his opinion regarding clinical onset being during the veteran’s military service, as outlined in his October 2017 report, remains the same. He stated that this was because onset is “slow and contributory and cumulative”; the veteran had been carrying heavy loads up and down hills in the military and that this does increase load on patellofemoral mechanism. Dr Johnstone noted that “I cannot definitively say when the onset was but I’ve seen the veteran after the fact and one knee definitely has the signs that clearly started sometime during his military service… He said to me that his knees became painful when he was deployed in East Timor, so the onset of pain may have been the start of the deterioration, although because the 2013 MRIs don’t show a clear change, at some point in time there was a deterioration”.
submissions
The veteran’s submissions
The veteran submits that he suffers from chondromalacia patella, but that he has also been diagnosed with several other conditions relating to his bilateral knee pain. The veteran referred to the fact that Drs Hughes and Johnstone stated that some diagnoses can be used interchangeably.
The veteran discussed the issue of clinical onset, and referred to the definition outlined in Lees v Repatriation Commission (2002) 125 FCR 331 at [13] (“Lees”):
“…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…”
The veteran remarked that Dr Nusem referred to his condition as having developed during his Army service, and being caused by the duties required of an infantry soldier. He submitted that Dr Johnstone considered that his knee pain developed in East Timor in 2006, as per his 14 February 2017 report, but that his chondromalacia patella condition was not confirmed until the MRI scan conducted on 26 July 2013, see Dr Johnstone’s 27 October 2017 report. The veteran submits that Dr Johnstone also considered that the condition was caused by his military service.

The hypothesis put forward by the veteran is that his knee pain was caused by undertaking weight-bearing exercise involving forceful loading of the patellofemoral by excessive weight ranging from:
·“30 kg to no less than 48 kg whilst carrying up and down extremely difficult terrain for 7 to 12 hours per day during his deployment in East Timor;
·30 kg to 40 kg per day while on foot patrols which would extend up to 10 km for up to 5 consecutive days during his warlike service in Iraq; and
·85 kg to 95 kg carried each day while undertaking patrols which would be between 2 to 120 hours of duration that required taking a knee at least 100 times, moving from a sitting position to a standing position that would be conducted at least 50 times during a patrol, jumping from one side of irrigation ditches to the other at least 20 times per patrol during his warlike service in Afghanistan.”
The veteran noted that the weight carried by him during his deployments was in excess of his own body weight, and there was an increased frequency, duration and intensity of weight-bearing activities involving the knee by at least 100 per cent for at least two hours per day for at least seven days while on operational service in Afghanistan.
The veteran considers that the only relevant SoP in this matter is that of No. 79 of 2010, which is relevant to warlike and non-warlike service. The veteran listed factors 6(e), 6(f), 6(g), 6(l), 6(m) and 6(n) as relevant in this matter. The veteran submits that his weight-bearing activities during his warlike and non-warlike service connect his chondromalacia patella condition to his service. The veteran states that his own evidence, as well the medical evidence of the orthopaedic surgeons, supports this. The veteran submits that therefore there is a reasonable hypothesis connecting his claimed condition with his service.
Lastly, after being given the opportunity to amend submissions regarding the effect of the new SoPs, the veteran still sought to rely on SoP No. 79 of 2010 because that was the SoP in effect at the time of the hearing and otherwise relied on in their previous final submissions.
The respondent submissions
The respondent addressed several of the submissions of the veteran. In particular, the respondent noted that none of the evidence raises the issue of whether the veteran had a pre-existing injury that has been aggravated by his service, so any references made by the veteran to clinical worsening are irrelevant. While the veteran raised factors 6(l), 6(m) and 6(n) of SoP No. 79 of 2010, which relate to clinical worsening, the respondent considers that the veteran did not develop any further submission relating to clinical worsening.
The respondent accepts that the veteran has been diagnosed with chondromalacia patella of the left knee which was confirmed by Dr Johnstone in January 2017. The respondent accepts that the evidence raises a hypothesis connecting the veteran’s chondromalacia patella of his left knee with his service between 25 July 2005 and 21 November 2013.
However the respondent does not accept that the veteran has been diagnosed with chondromalacia patella of the right knee and submits that the decision under review should be affirmed in relation to the right knee.
In relation to the new SoPs, the respondent submits that as no decision was made prior to the RMA concluding its investigations that the new SoPs should be applied in this case as there is no accrued right to apply previous SoPs in this application. The respondent acknowledges that it should have advised the Tribunal at the time of the hearing of the pending investigation by the RMA, and the effect of the authorities identified at the hearing and/or in its final submissions. The relevant SoP concerning warlike and non-warlike service is SoP No. 1 of 2019.
The respondent also submitted that the veteran was silent on the issue of clinical onset, and that he did not specify when he considers clinical onset to have occurred.
The respondent referred to the same definition of clinical onset referred to in the veteran’s submissions, as outlined in Robertson and Repatriation Commission [1998] AATA 127 at [23] and followed in Lees.
In the respondent’s earlier Statement of Facts, Issues and Contentions (“SFIC”), the respondent provided a more detailed analysis of the issue of clinical onset. They submitted that the date of clinical onset must be supported by medical evidence, and it is not necessarily the same date that a person first seeks medical treatment or that a diagnosis is given.[38] The Full Federal Court in Lees at [16] decided that clinical onset is not satisfied by a finding that a process had earlier commenced which the clinical diagnosis subsequently confirms; the material must point to all of the features of the condition present at or within the prescribed time period.
[38] Kaluza v Repatriation Commission [2011] FCAFC 97 at [51] and [66].
The respondent submits that the first two elements of the definition of chondromalacia patella were satisfied following Dr Johnstone’s review of the veteran in January 2017 when he felt softening of the veteran’s left articular cartilage on physical examination. The respondent submits that the veteran’s experience of “knee pain” is not sufficient to determine clinical onset of chondromalacia patella because knee pain alone does not meet the definition – there must be a softening, fibrillation or erosion of the articular cartilage of the patella.
The respondent submits that the veteran first reported knee pain relevant to the claimed condition in his claim form on 12 April 2013. They contend that no investigations were made into the veteran’s knees prior to this date as the veteran denied any unexplained joint or muscle pain in all post-deployment health checks.[39]
[39] Exhibit A, T-Documents, T3 at p. 246.
The respondent submits that it cannot be said that clinical onset occurred prior to July 2013 as there was no diagnosis of chondromalacia patella at the time the veteran underwent radiological and physical examinations. The respondent also referred to Dr Johnstone’s explanation that the existence of knee pain is not necessarily related to damage to the chondral surface of the patella. The respondent submits that the new SoP factors do not include any reference to experiencing knee pain therefore this is not a minimum factor which must exist in order to relate a person’s service with the condition.
The respondent submits that while it is accepted by Dr Johnstone that in January 2017 the conclusion could be drawn that the veteran’s symptoms were due to chondromalacia patellae which was initiated by the veteran’s military service, none of the requirements of factor 9 of the new SoP are met.
The respondent submits that factors 9(13), 9(14) and 9(15) outline circumstances which must exist before it can be said that the hypothesis is upheld by the SoP in relation to clinical worsening. The respondent submits that there is no evidence of clinical worsening. The veteran’s diagnosed chondromalacia patella of the left knee does not meet the requirements of the Act as clinical onset did not occur until after the veteran ceased military service in 2013 (diagnosed in January 2017).
The respondent submits that the veteran last performed the necessary running and weight bearing activities required during his tour of Afghanistan between 17 February 2010 and 27 October 2010 which was well before the diagnosis or sign of chondromalacia patella.
Additionally the respondent submits that the veteran has also not been diagnosed with chondromalacia patella of the right knee. The respondent further submits that liability for the veteran’s right knee sprain has never been disputed with the date of clinical onset 2 June 2009.
The respondent also submits that in the alternative in relation to SoP No. 2 of 2019 (balance of probabilities) that at the time the veteran first reported right knee pain and filed his claim in May 2013, he was performing peacetime service. The respondent submits that the veteran is unable to meet the factors contained in SoP No. 2 of 2019 because from 1 October 2011 until 1 October 2012, the veteran was on leave where he was working as a ski-lift operator and not subject to the load bearing activities or running requirements of the military; and from 7 November 2012 until the veteran’s discharge he was subject to medical restrictions.
The respondent further submits that the Tribunal cannot be reasonably satisfied that the veteran’s chondromalacia patellae had its clinical onset in May 2013 as it is against the weight of the medical evidence particularly the MRI on 26 July 2013 which reported “no convincing MR features of chondromalacia patellae”. Dr Johnstone’s review of the MRI led to his finding that, based on the MRI, it is “not possible to determine whether there is any softening, fibrillation or erosion of the articular cartilage”.
The respondent submits that the material before the Tribunal raises a hypothesis connecting the veteran’s chondromalacia patella of the left knee with his service and that the relevant SoP is that in SoP No. 1 of 2019. The respondent submits that the hypothesis connecting the veteran’s service with his condition is not reasonable as it is not upheld by the SoP and does not meet the factors required. The respondent also submits that the evidence only indicates clinical onset of the veteran’s chondromalacia patella in his left knee after his discharge from the Army in November 2013.
The veteran’s reply submissions
The veteran provided written submissions in reply which addressed several of the submissions put forward by the respondent.
The veteran referred to the opinions of Dr Johnstone and Dr Nusem that the condition occurred while he was performing military duties. The veteran also referred to his statement of 9 May 2017, in which he indicated that he had experienced severe pain in both knees while on deployment but did not seek medical advice due to being in a remote location and the fact that his team relied on him. The veteran submits that the medical evidence supports the contention that the clinical onset of chondromalacia patella occurred during his period of operational service. The veteran also submits that the medical witnesses agreed to the activities he undertook during his operational service, and there is a reasonable hypothesis connecting the veteran’s chondromalacia patella condition with his service.
The veteran submitted that he was a credible witness who gave evidence of the physical requirements during his tours, which required carrying excessive weight over long distances and substantial periods of time which caused him to develop pain in his knees.
The veteran also contended that it is open to him to raise an argument regarding clinical worsening or aggravation of a pre-existing injury. He submitted that the respondent incorrectly indicated that none of the evidence raises the issue that he had a pre-existing injury which was aggravated by his service. The veteran raised the fact that during cross-examination the respondent asserted that the veteran had never complained about an injury to his knees during his service, and the veteran’s representative objected on the basis that that was an incorrect assertion of fact with an outpatient clinical record of 2 June 2009 noting that the veteran presented with right knee pain on this occasion.[40]
[40] Exhibit A, T-Documents, T3 at p. 41.
CONSIDERATION
I accept the submission of the respondent that I am required by s 341(2) of the Act to apply the current SoP at the time of my decision which is SoP No. 1 of 2019. I am prevented by s 341(3) of the Act from applying a repealed SoP.
One important consideration in the application of the current SoP is to determine whether there is a diagnosis of the chondromalacia patella condition of the veteran. In 2017 Dr Johnstone confirmed that the veteran was suffering from the chondromalacia patella condition in the left knee. I am satisfied that the chondromalacia patella condition of the veteran comes within the definition of “chondromalacia patella” in s 7(2) of SoP No. 1 of 2019. This is because Dr Johnstone confirmed that in the left knee there was softening of the articular cartilage of the patella. For the sake of completeness I should record that there is no evidence before me that there was any osteoarthritis of the patellofemoral joint which is an express exclusion in that definition.
I next have to determine when there was the clinical onset of the chondromalacia patella condition.
Dr Hughes had examined the veteran on 25 February 2015 and in his dictated report to Dr McCarthy, Dr Hughes had then provided a diagnosis of bilateral patellofemoral syndrome. In his later report of 18 July 2016 he gave a diagnosis of chondromalacia patella condition. In cross-examination he stated that his first letter was a report to a general practitioner and not a formal report. Dr Hughes also explained that the terms bilateral patellofemoral syndrome and chondromalacia patella condition are used interchangeably. In Dr Hughes’ report of 18 July 2015 he referred to the patellofemoral crepitus of the veteran. In giving evidence he referred to the 2013 MRI which identified that there was some signal change in the medial facet of the left patella which was consistent with softening of the cartilage under the patella which is chondromalacia patellae. In reliance on this evidence I accept that that the veteran certainly had the chondromalacia patella condition when first seen by Dr Hughes in 2015. I have, however, to determine whether there was clinical onset of the condition at an earlier date.
Dr Johnstone in his report of 14 February 2017, which was commissioned by the respondent, gave his opinion that the clinical onset of the chondromalacia patella condition was in East Timor. His opinion was given in answer to the question: “When did the knee conditions first arise” (i.e. clinical onset). In his supplementary report of 12 June 2017 Dr Johnstone restated his opinion that the veteran’s symptoms in his knees arose as a result of his tour of East Timor in 2006. Dr Johnstone remarked that the pain that the veteran was experiencing in East Timor is the same pain that he experiences now. In the letter of instruction dated 25 May 2017 Dr Johnstone was asked to identify whether the service of the veteran satisfied any of the factors in SoP No. 79 of 2010. Dr Johnstone answered: “The factors which resulted in his knee condition would be carrying heavy loads, walking up hills for up to four hours at a time, and his physical fitness regime with running, pack marching etc.” In his report Dr Johnstone stated that the tight retinacular structures are not constitutional and are most likely due to the physical training and muscular strengthening of his quadriceps mechanism due to military service.
Dr Johnstone in giving evidence before this Tribunal has explained why the clinical onset of the chondromalacia patella condition was in East Timor. Dr Johnstone reiterated that the veteran had informed him of his knee pain whilst he was serving in East Timor:
“one knee definitely has the signs that started at some point in time clearly during his military service. He documented to me that his knees became painful when he was on overseas deployment in East Timor so the onset of pain may have been the start of the deterioration although at that stage, because the MRIs of 2013 don’t show a clear change to the chondral surfaces but at some point in time we do get to a point where the patella surface will deteriorate.
Now he has been carrying heavy loads up and down hills for the military and that does increase the load on your patella femoral mechanism. My knowledge of the military was such that I assumed that he would have been carrying loads that exceeded his normal body weight when he was on deployment in East Timor. I know that the terrain is rather mountainous and even walking up a simple flight of stairs you increase the load in your patella femoral joint about six times, so you don’t need to be carrying very much to increase the load on your patella femoral mechanism.”
Dr Johnstone also stated that he formed his opinion on the basis of early patellofemoral crepitus in the left knee and has opined that the tight lateral retinacular structures have caused pressure on the patellofemoral joint. Dr Johnstone also acknowledges that there can be pain in the knee without any damage to the chondral surface of the patella.
Dr Hughes has also reported on the left knee: in his report of 18 July 2016 he mentioned that there was some signal change in the medial facet of the left patella which was identified in the MRI of 2013. Dr Hughes also referred to the slight fissuring of the articular cartilage of the left knee. On the state of the evidence before me, I cannot find that there is presently a chondromalacia patella condition in the right knee. However, Dr Johnstone anticipates that the right knee may have this condition in the future.
I have had regard to the fact that in his statement of 17 May 2013 the veteran did not mention that he experienced knee pain while he was in East Timor. However, at that time the prime concern of the veteran would have been with having his back condition and other conditions accepted. It was only in 2016 that the VRB made a decision which accepted the lumbar spondylosis and spondylolisthesis conditions of the veteran. In my opinion the fact that some two months after he wrote his statement in 2013 the veteran informed Dr Nusem of his knee pain adds to the consistency of his account of experiencing knee pain on his tour in East Timor.
I rely upon the opinion of Dr Johnstone that the clinical onset of the chondromalacia patella condition arose in East Timor in 2006. Dr Johnstone gave his opinion in his 2017 report and in giving evidence stood by his conclusion which was quite properly not challenged by the respondent.
In giving evidence before the Tribunal Dr Johnstone was certainly aware that Dr Iyer reported in 2013 that there were no “convincing features of chondromalacia” but such a report does not exclude such a diagnosis. Dr Johnstone explained: “the MRIs of 2013 don’t show a clear change to the chondral surfaces but at some point in time we do get to a point where the patella surface will deteriorate”. Dr Johnstone has also adverted to the limitations of MRI technology which prevailed in 2013.
I will next examine the application of SoP No. 1 of 2019 which applies in respect of “relevant service” as defined in Schedule 1 of the SoP which includes the non-warlike service undertaken in East Timor.
The veteran gave evidence that he was deployed to East Timor on 16 September 2006 and spent a number of months in East Timor, carrying his full equipment, food and water, which weighed no less than 48 kilograms. That deployment ceased on 19 March 2007. Dr Hughes served in East Timor at the same time as the veteran and was aware of the conditions in East Timor. Dr Hughes gave evidence about the duties of the veteran in East Timor:
“Now he has been carrying heavy loads up and down hills for the military and that does increase the load on your patella femoral mechanism. My knowledge of the military was such that I assumed that he would have been carrying loads that exceeded his normal body weight when he was on deployment in East Timor. I know that the terrain is rather mountainous and even walking up a simple flight of stairs you increase the load in your patella femoral joint about six times, so you don’t need to be carrying very much to increase the load on your patella femoral mechanism”.
Dr Hughes in giving evidence was referred to factors 6(e), 6(f), 6 (g) and 6(m) of SoP No. 79 of 2010 which are some of the factors that are required before it can be said that a reasonable hypothesis has been raised connecting chondromalacia patella with relevant service:
(e) running or jogging on an average of at least ten kilometres per week for at least one month before the clinical worsening of chondromalacia patella.
(f) undertaking weight bearing exercise involving forceful loading of the patella femoral joint with the knee in a flexed position at a rate greater than six METs for at least four hours per week, for at least the month prior to the clinical onset of chondromalacia patella.
(g) increasing the frequency, duration and intensity of weight bearing activity involving the affected knee by at least 100 per cent to a minimum intensity of five METs for at least two hours per day for at least seven days before the clinical onset of chondromalacia patella.
(m) undertaking weight bearing exercise involving forceful loading of the patella femoral joint with the knee in a flexed position at a rate greater than six METs for at least four hours per week for at least one month prior to the clinical worsening of chondromalacia patella.

Dr Hughes confirmed that it was his opinion that these factors fit in with his diagnosis.
Dr Johnstone in giving evidence also confirmed that factor 6(g) of SoP No. 79 of 2010 was relevant. Dr Johnstone gave the following reasons for this conclusion:
“any increase in patella femoral load such as the PT that is undertaken by unit physical training, running distance, lots of squats, stair climbing, anything that increases the load in the patella femoral mechanism can cause the recurrence of symptoms, the aggravation of symptoms. The amount of load will - and the intensity and duration may vary from time to time in terms of its ability to aggravate and would vary from person to person”.
Recently, in Stevens v Repatriation Commission [2018] FCA 1866 (at [24]) Logan J referred to Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 (at [48]) where the Full Court observed:
“The dividing line between impermissible fact finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern”.
I consider that a hypothesis has been raised which points to the chondromalacia patella of the left knee of the veteran being connected with the relevant service of the veteran being non-warlike service in East Timor. This service is the subject of a non-warlike determination under s 6(1)(b) of the Act.[41] I am conscious that at this stage of my inquiry I am required under s 338 of the Act to determine whether a hypothesis is reasonable in connecting the disease with the service of the veteran. The opinion of two senior members of the medical profession (Dr Hughes and Dr Johnstone) that factor 6(g) of SoP No. 79 of 2010 certainly assists me in concluding that the hypothesis is reasonable. Importantly, factor 9(7) of SoP No. 1 of 2019 is in the same terms as factor 6(g) of SoP No. 79 of 2010. I have therefore decided pursuant to s 338 of the Act that the hypothesis is reasonable because SoP No. 1 of 2019 upholds the hypothesis. The material satisfies the template in factor 9(7) of SoP No. 1 of 2019. There is certainly no basis upon which I could conclude (and there certainly was no suggestion) that the opinions of Dr Johnstone and Dr Hughes are fanciful. Under s 338 of the Act the chondromalacia patella of the left knee of the veteran is therefore a service disease.
[41] Review of Military Compensation Arrangement (Department of Veterans’ Affairs) (February 2011) Vol 2, p. 406 (Appendix C).
There is no material before me which enables me to make a finding relating to any of the factors in SoP No. 1 of 2019 which relate to the clinical worsening of the chondromalacia patella condition of the veteran. None of the specialists in giving evidence were asked about when there was clinical worsening of the condition.
I have also had regard to s 335 of the Act and have concluded that I cannot be satisfied, beyond a reasonable doubt, that there is no sufficient ground for making the determination that the chondromalacia patella condition of the left knee of the veteran is connected with non-warlike service of the veteran in East Timor. Dr Johnstone gave cogent reasons why he considered that the predecessor factor to factor 9(7) of SoP No. 1 of 2019 was applicable. Dr Johnstone considers that the knee condition first arose in East Timor in 2006 and stood by this conclusion which was properly not challenged by the respondent.
The veteran has been consistent in identifying his service in East Timor as being when his condition arose. As well as informing Dr Johnstone about this in 2017, he also informed Dr Nusem about the knee pain in 2013 when Dr Nusem examined the veteran in July 2013. Dr Nusem in his report dated 15 August 2013 mentioned that the veteran “relates the pain to his first tour to Afghanistan”. This reference can only refer to the veteran’s service in East Timor as the veteran had served in Afghanistan on only one occasion. On the state of the evidence before me, I am unable to make a finding that no symptoms of the disease were present in East Timor.[42] The opinion of Dr Johnstone that the military service of the veteran contributed to his chondromalacia patella condition is certainly consistent with the opinion of Dr Hughes who in his letter of 26 February 2015 also made reference to the repetitive lifting, carrying heavy weights and squatting that was routine in the army.
[42] Cf., Youngnickel v Repatriation Commission [2004] FCA 1691, at [71] per Bennett J.
CONCLUSION
The determination of this application was delayed because the Tribunal was not advised of the pending investigation by the RMA into chondromalacia patella and the need to afford procedural fairness to the parties to enable submissions to be made in respect of the current SoP. Whilst the respondent has apologised for not informing the Tribunal of the pending investigation by the RMA, it may be that the Tribunal should have been informed of the pending investigation pursuant to s 33(1AA) of the Administrative Appeals Tribunal Act 1975. In any event there should be consideration as to whether there should be a statutory responsibility upon the respondent to inform the Tribunal of any such investigation.[43] This is particularly important having regard to the fact that s 341(3) of the Act has displaced the long-standing principles in Repatriation Commission v Gorton (2001) 110 FCR 321 under which an veteran had an accrued right to have a claim initially assessed having regard to the SoP which was in force at the time of a claim.
[43] Cf., Veterans Entitlement Act 1986, s 120A.
If the veteran had not succeeded I would have given consideration to remitting the application to the respondent to consider whether there are grounds for the respondent to make a determination under s 340 of the Act to override the decision of the RMA in relation to the SoP regarding the East Timor service performed by soldiers of the class of the veteran.
This is a case not without some difficulty and I wish to acknowledge the assistance to the Tribunal which has been provided by counsel for both parties. I might also add that this Tribunal had the benefit of evidence which was not before the VRB.
DECISION
The Tribunal varies the reviewable decision to provide that the Commission is liable under s 23 of the Military Rehabilitation and Compensation Act 2004 (Cth) in respect of the chondromalacia patella condition of the left knee of the veteran is a service disease: the reviewable decision is otherwise affirmed.

I certify that the preceding 176 (one hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.........................[SGD].................................
Associate
Dated: 12 July 2019

Dates of hearing:

Date final submissions received:

1 November 2017

12 February 2018

6 March 2019

Veteran:

Solicitors for the Applicant:

Counsel for the Applicant:

Solicitors for the Respondent:

Counsel for the Respondent:

In person

Howden Saggers Lawyers

Ms Ann Frizelle

Australian Government Solicitor

Ms Laura Allen

[2019] AATA 1867

12 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

TRIBUNAL:	Deputy President Dr P McDermott RFD
DATE of CORRIGENDUM:	15 July 2019
PLACE:	Brisbane