Yates and Military Rehabilitation and Compensation Commission (Compensation)

[2020] AATA 78

Yates and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 78 (29 January 2020)

Division:VETERANS’ APPEALS DIVISION

File Number:2017/7580          

Re:Scott Brian Yates  

APPLICANT

Military Rehabilitation and Compensation CommissionAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:  29 January 2020

Place:  Brisbane

The decision under review is affirmed.

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

Senior Member Katter

CATCHWORDS

MILITARY COMPENSATION – when conditions manifested – lumbar spondylosis – osteoarthritis - applicable test for causation – decision under review affirmed

LEGISLATION

Military Rehabilitation and Compensation Act 2004 (Cth)

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

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

CASES

Comcare v Sahu-Kahn [2007] FCA 15

Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641

Repatriation Commission v Bendy [1989] FCA 170

REASONS FOR DECISION

Senior Member Katter

29 January 2020

1. This is an application to review the Respondent’s decision as to liability pursuant to section 14 of the Safety, Rehabilitation and Compensation (Defence-related claims) Act 1988 (Cth) for the Applicant’s osteoarthritis of the left hip and lumbar spondylosis.

   BACKGROUND

2. The Applicant served in the Royal Australian Air Force between 24 July 2001[1] and 27 November 2004[2].

   [1]Exhibit 1, T Documents, T2, page 12, Respondent Statement Pursuant to Section 37 and Reasons for Decision.  Transcript P-11 at lines 42-43.

   [2]Exhibit 1, T Documents, T2, page 12, Respondent Statement Pursuant to Section 37 and Reasons for Decision. 

3. By a Claim for Rehabilitation and Compensation form signed 28 November 2016[3] the Applicant stated:

   [3]           Exhibit 1, T Documents, T5.1 at pages 82-83.

   “For what injury, disease or illness are you claiming?
   Lower Back pain
   What part of your body is affected? …
   Lower Back
   When did the injury happen or when did you first notice the disease or illness? …
   01/01/2005 …
   On what date did you first receive medical treatment for this injury, disease or illness?
   02/07/2006
   Did you report your injury, disease or illness to your supervisor?
   No …
   Where did the injury happen? …
   At work – working at normal workplace …
   What task was being performed when you sustained the injury? …
   Heavy lifting over my service time …”    

4. The Applicant also completed an Injury or disease details sheet[4], stating:

   [4]           Exhibit 1, T Documents, T5.2, page 88.

   “Injury or disease
   Lumbar Spondylosis (lower back pain)
   Signs and symptoms
   See statement: pain, loss of movement in range, stiffness
   How do you believe your service caused, contributed to or aggravated this
   injury or disease?
   Heavy lifting in day to day duties. Statement of duties conducted provided.
   When did the injury happen (if applicable)? …
   Has a Defence injury report been completed?
   No …
   When did you first notice signs of symptoms of the injury or disease?
   2005
   On what date did you first receive medical treatment for this injury or disease?
   2008
   Name of your treating medical practitioner/hospital/specialist
   Dr Mark Bennett
   Type of treatment or consultation provided (e.g. GP, specialist)
   GP
   Has this injury or disease worsened or been aggravated since 1 July 2004?
   Yes
   Is a medical practitioner’s account attached in relation to completion of this
   injury or disease details sheet?
   No …”

5. By a further Claim for Rehabilitation and Compensation form signed 28 November 2016[5] the Applicant stated:

   [5]           Exhibit 1, T Documents, T5.5 at pages 95-96.

   “For what injury, disease or illness are you claiming?
   L(Hip pain
   What part of your body is affected? …
   L hip
   When did the injury happen or when did you first notice the disease or illness? …
   23/10/2014 …
   On what date did you first receive medical treatment for this injury, disease or illness?
   02/07/2015
   Did you report your injury, disease or illness to your supervisor?
   No …
   Where did the injury happen? …
   At work – working at normal workplace …
   What task was being performed when you sustained the injury? …
   Heavy lifting over my service time …”           

6. The Applicant also completed a further Injury or disease details sheet[6], stating:

   [6]           Exhibit 1, T Documents, T5.6, page 99.

   “Injury or disease
   L/ Hip Osteoarthritis
   Signs and symptoms
   pain, stiffness, pain at rest
   How do you believe your service caused, contributed to or aggravated this
   injury or disease?
   See statement continuous Heavy lifting in my day to day duties
   When did the injury happen (if applicable)? …
   Has a Defence injury report been completed?
   No …
   When did you first notice signs of symptoms of the injury or disease?
   23/10/2014
   On what date did you first receive medical treatment for this injury or disease?
   23/10/2014
   Name of your treating medical practitioner/hospital/specialist
   Dr Mark Bennett
   Type of treatment or consultation provided (e.g. GP, specialist)
   GP
   Has this injury or disease worsened or been aggravated since 1 July 2004?
   No^[[7]]
   Is a medical practitioner’s account attached in relation to completion of this
   injury or disease details sheet?
   No … ”

   [7]           The Applicant ticked both the ‘Yes’ and ‘No’ boxes for this question.

7. There is a statement by the Applicant dated 27 May 2016 which refers to “Back and hip pain”[8].  There is a further statement by the Applicant dated 28 November 2016 which refers to “Left Hip Pain and back pain”[9], which states:

   [8]           Exhibit 1, T Documents, T5.3, page 90.

   [9]           Exhibit 1, T Documents, T5.4, page 91.

   “Daily routine heavy lifting

   My first posting after training was 75 Squadron in 2002, I was posted as a General          Hand.

   My daily routine was as follows;

   1) I had to clean and empty all bins in the North and South Annexe,

   2) I had to check and make sure that all the loose tools were collected and put all            loose tools away they were collected in a big tub until it was too heavy to carry,

   3) None of the hangers had running water say every day I had to check the water for their hand cleaning. If the water was empty I had to refill through tubs from five and 10 L containers.

   4) fill all fluids this includes water bins a hand cleaning, window cleaning fluid for   aircraft, hydraulic fluids,

   5) I had to ensure all hangers had fall bins of cleaning rags. If they were not full I   had to refill them. I had to get a bag of rags out of the Ute empty them into the bin,

   6) if parts were required for the Aircraft in the hangar it was my job to collect from the headquarters stores and take it back to the hangar this could be anywhere up to 5 parts at a time,

   7) I was given an extra regimental duty with the Social Club. I became the stock control member for the social club. I was required to do this on a fortnightly basis for the three years that I was at 75 Squadron.

   8) With each deployment each year I was required to ensure all of the stores were          ready to be loaded onto pallets, this would include

   a) G tainers, deployment trunks full and empty, cartons, water, generators, jerry can water and fuel, any aircraft parts that needed to be replaced, chucks for the wheels, buns for the intake of the engines, and Cam nets, load and unload hot boxes for their aircraft crew.

   9) I was responsible for collecting all stores for Bay Squadron and taking them to relevant hangars.”

8. On 16 May 2017 the Respondent “rejected” the claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRCA”) stating: “After considering all the evidence, I am not reasonably satisfied that your Defence service has contributed to a significant degree to the development of your lumbar spondylosis and osteoarthritis of the left hip conditions”[10]. The reasons for the decision stated relevantly[11]:

   “After a full review of your ADF documents no evidence was found of back or hip trauma during service. I noted your heart condition was monitored vigorously, however you passed the Physical Fitness Requirements. The on duty Medical Officer’s undertaking your Medical Examination during service have all recorded your spine, upper extremities and lower extremities as ‘Normal’.

   To establish a formal diagnosis and military contribution to the causation of your lower back and left hip conditions due to rigors of service and heavy lifting; a report was requested from Orthopaedic Surgeon Dr Watson. I received this report on the 16/05/2017 and Dr Watson confirmed a diagnosis of lumbar spondylosis and osteoarthritis of the left hip.

   Based on the evidence provided at this time Dr Watson is of the opinion that your military service did not contribute to the degenerative changes of your diagnosed conditions. He stated the primary causation of these conditions are constitutional and rated this as very significant factor.

   Rejection of Liability

   After considering all the evidence, I am not reasonably satisfied that your Defence service has contributed to a significant degree to the development of your lumbar spondylosis and osteoarthritis of the left hip conditions.”

   [10]          Exhibit 1, T Documents, T11, page 162, Repatriation Commission Decision with Reasons.

   [11]          Exhibit 1, T Documents, T11, page 162, Repatriation Commission Decision with Reasons.

9. The Applicant by letter dated 12 June 2017 requested a reconsideration of the decision made on 16 May 2017 as to osteoarthritis of the left hip and lumbar spondylosis[12].  The delegate of the Respondent decided to affirm the determination on 8 August 2017[13].

   [12]          Exhibit 1, T Documents, T1, page 4.

   [13]          Exhibit 1, T Documents, T1, page 4.

10. By an Application for Review to this Tribunal, received on and dated 21 December 2017, the Applicant sought a review of the decision made on 8 August 2017[14].  The Applicant stated the following reasons for seeking a review of the decision dated 8 August 2017 in the Application form:  “Lifting and carrying weights in excess of 20kgs to a cumulative total of well in excess of that laid down under VEA and MRCA Service. We understand this is a SRCA matter”[15]. 

    [14]          Exhibit 1, T Documents, T1, page 3.

    [15]          Exhibit 1, T Documents, T1, page 3.

    LEGISLATION

11. The Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (“the Act”) at section 4AA(2) states:

    “(2)     This Act applies (subject to Part X) in relation to an ailment, or an    aggravation of an ailment, suffered by an employee if:

    (a)       the ailment or aggravation is contributed to, to a significant    degree, by the employee’s employment as a member of the   Defence Force; and

    (b)       the employment occurred:

    (i) on or after the commencement of section 3 of    the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (which was 1 December 1988); and

    (ii) before the MRCA commencement date (which was 1 July 2004), but not before and on or after, the MRCA commencement date.

    Note: Compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for an ailment or aggravation that relates to employment that occurred after the MRCA commencement date.”

12. Section 4(1) of the Act defines the MRCA as meaning the Military Rehabilitation and Compensation Act 2004 (Cth).

13. On and from 13 April 2007[16], section 5B of the Act has defined a disease to mean:

    [16] Section 2 and Clause 41(1) of Schedule 1 of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) state that the definition of disease applies in relation to an       ailment or an aggravation of that ailment that an employee suffers on or after the day that that Act         received Royal Assent (12 April 2007): “2  Commencement  (1) Each provision of this Act specified         in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of       the table. Any other statement in column 2 has effect according to its terms.

    “(1)      In this Act:

    disease means:

    (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.

    (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.

    (3)       In this Act:

    significant degree means a degree that it substantially more than material.”

14. Section 7(4)[17] of the Act states:

    “7   Provisions relating to diseases …

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

    (a)       the employee first sought medical treatment               for the disease, or aggravation; or

    (b)       the disease or aggravation resulted in the               death of the employee or first resulted in the    incapacity for work, or impairment of the   employee;

    whichever happens first.”

    [17]Clause 41(2) of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) states that for the purpose of clause 41(1) an employee suffers an ailment or aggravation on the day determined under section 7(4) of the Act:

    “41  Application of amendment of the definition of disease (section 5B) …

    (2) For the purposes of subitem (1), an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988.”

    ISSUES

15. The issue is when the Applicant is “taken to have sustained”[18] lumbar spondylosis and osteoarthritis of the left hip and whether those conditions were contributed to, to a significant degree, by the Applicant’s employment by the Commonwealth[19].

    [18] Section 7(4) of the Act.

    [19] Section 5B of the Act.

    EVIDENCE

16. The Applicant gave oral evidence at the hearing on 4 July 2019[20].

    [20]          Transcript 4 July 2019, P-7-22.

17. The Applicant was a plasterer for some 10-15 years prior to the commencement of service in 2001[21]. The Applicant stated as to plastering: “Well, you’re carrying a 20 kilo bag of plaster … to different sections unless … you had labourers … to move them for you – because it was a big company, they have labourers …”[22]. The Applicant agreed that it would be “fair to say” he did some heavy lifting but less when labourers were there[23].

    [21]          Transcript 4 July 2019, P-12 at lines 5-6.

    [22]          Transcript 4 July 2019, P-12 at lines 23-28.

    [23]          Transcript 4 July 2019, P-12 at lines 35-36.

18. The Applicant referred to having been a representative schoolboy and under 21’s tighthead prop-forward rugby player, also playing A-grade in Brisbane[24].  

    [24]          Transcript 4 July 2019, P-13 at lines 12-20.

19. The Applicant was 31 years of age at the time of commencement of service[25]. The Applicant stated that as far as he knew he had no condition prior to joining the Royal Australian Air Force[26], with no documentation as to any condition on entry into service in that regard[27]. The Applicant stated that he was a General Hand, looking after the hangars where the aircraft were housed, including the obtaining of supplies in that regard[28].

    [25]          Transcript 4 July 2019, P-11 at line 45.

    [26]          Transcript 4 July 2019, P-7 at lines 40-43.

    [27]          Transcript 4 July 2019, P-7 at lines 45-47.

    [28]          Transcript 4 July 2019, P-8 at lines 3-7.

20. The Applicant referred to “a fair bit of heavy lifting”, including lifting a water tanker trailer onto the towbar[29] on the back of a utility vehicle at Katherine in the Northern Territory, where he would take that utility around, moving different parts of aircraft[30]. The Applicant stated that he served at RAAF Base Tindal from September 2001 until the conclusion of his service[31]. The Applicant stated that he would “pick up” weights over 20kgs, including circumstances where he would have oil-tins brought to him on a pallet by a forklift, but then he would “have to manually put it away in stores and then pick it up … so it was all ready for the technicians to do their work”[32].

    [29]          Transcript 4 July 2019, P-8 at lines 6-7.

    [30]          Transcript 4 July 2019, P-8 at lines 7-14.

    [31]          Transcript 4 July 2019, P-9 at lines 32-42.

    [32]          Transcript 4 July 2019, P-8 at lines 16-23.

21. The Applicant stated that he:

    “… had some back pain during service but it was only like a niggle, …. well it probably should have been a concern but there’s only a pain here and there so I did not seek to go to medical^[[33]^] … I might’ve had some niggles and pains here and there but nothing that I thought that was … concerning. Obviously if it was bad I would [have seen] medical”^[[34]^].

    The Applicant described the “niggles” as being “like a sharp pain”, which was different to the “big full pain” (that is “worse”), experienced by the Applicant after service[35].

    [33]          Transcript 4 July 2019, P-8 at lines 42-44.

    [34]          Transcript 4 July 2019, P-8 at lines 46- 47 and P-9 at lines 1-2.

    [35]          Transcript 4 July 2019, P-18 at lines 19-38.

22. The Applicant stated that he avoided heavy lifting and extremes of exertion from 13 February 2003[36], in that he was experiencing the effects of a cardiology condition from that time[37].

    [36]          Transcript 4 July 2019, P-14 at lines 14-15.

    [37]          Transcript 4 July 2019, P-13 at lines 32-33.

23. In the medical examination records completed on 20 January 2003 and 3 March 2003 there were no abnormalities detected in the spinal system[38]. On 18 January 2004 the Applicant completed an annual health assessment stating that he had no current injuries[39]. The Applicant stated that he did not experience left hip pain until 2014, with no experience of left hip symptoms during service[40].

    [38]          Transcript 4 July 2019, P-19 at lines 20-35.

    [39]          Transcript 4 July 2019, P-19 at lines 39-47.

    [40]          Transcript 4 July 2019, P-21 at lines 1-3.

24. After concluding service the Applicant stated that he again worked as a plasterer for the same company that he worked for prior to his service[41]. The Applicant stated that his role at the company as a plasterer changed after the Applicant returned after service, in that he was doing defect work, after a crew of plasterers had come through, which involved no heavy lifting[42]. The Applicant contrasted the defects work with the “putting up of sheets” which was “very heavy lifting”[43].

    [41]          Transcript 4 July 2019, P-15 at lines 36-40.

    [42]          Transcript 4 July 2019, P-15 at lines 38-47.

    [43]          Transcript 4 July 2019, P-16 at lines 1-7.

25. The Applicant gave evidence that in 2016 the Applicant was “doing heavy manual work” as a plasterer[44], with the carrying of 20 kilogram bags[45]. The Applicant stated that he had stated to Dr Richard Kayla that he had chronic pain in 2016, where he “hadn’t had too much pain [previously]”[46].

    [44]          Transcript 4 July 2019, P-16 at lines 31-33.

    [45]          Transcript 4 July 2019, P-16 at lines 34-36.

    [46]          Transcript 4 July 2019, P-16 at lines 22 and 38-42.

    Dr Chris Cunneen

26. Dr Chris Cunneen, a consultant physician specialising in injuries and elements as to work environments, gave oral evidence[47].

    [47]          Transcript 4 July 2019, P-27 at lines 22-26.

27. Dr Cunneen stated that:

    “… there was nothing to support that [the Applicant] had work-related presentations during [service] but certainly given the early onset and the extent of degenerative disease involving his bilateral hips, particularly his left from memory, and his lumbar spine is that his employment as a serving member … would have been a significant contributing factor in the aggravation of his underlying pathologies”[48].

    [48]          Transcript 4 July 2019, P-27 at lines 40-46 and P-28 at lines 1-5.

1. The doctor was of the opinion that the:

   “… manual type of role as a general duties member of the RAAF over a period of three years would certainly be consistent with having contributed. It’s not the sole factor. It’s probably not even the main factor but it is a significant contributing factor in the early onset of his degenerative joint disease involving both hips and his lumbar spine”[49].

   [49]          Transcript 4 July 2019, P-28 at lines 19-24.

2. The doctor stated that the Applicant has “early onset advanced osteoarthritis involving both hips, particularly the left … and some congenital changes in his back”[50]. The doctor stated that he “spent the best part of an hour with [the Applicant]” going through his role in service[51]. The doctor stated that it’s not just the weight that is lifted but also the frequency, referring to the repetitive lifting of stocks and stores, where a lot of that lifting was not always at an optimal height[52].

   [50]          Transcript 4 July 2019, P-33 at lines 43-46.

   [51]          Transcript 4 July 2019, P-34 at lines 9-11.

   [52]          Transcript 4 July 2019, P-34 at lines 16-24.

3. The doctor agreed that the impact on duties from February 2003 of the cardiac condition of the Applicant does change the doctor’s opinion, in that it ‘certainly reduces the period’, in that the doctor thought that the impact on duties occurred later in the year or the following year[53]. The doctor further stated that he did not think that the Applicant’s service in the military was the most significant or crucial factor, but that he believed “that it would need to be considered … and certainly may have accelerated his onset of the degenerative diseases”[54].

   [53]          Transcript 4 July 2019, P-35 at lines 5-13.

   [54]          Transcript 4 July 2019, P-35 at lines 34-38.

4. The doctor stated that having regard to his age and the amount of “wear and tear”, it is difficult not to say that the defence service wasn’t a factor in early onset of the diseases: “whether you use the word aggravation, acceleration, symptomatic exacerbation or whatever”[55].

   [55]          Transcript 4 July 2019, P-36 at lines 11-15.

   Dr Gregory John Bookless

5. Dr Gregory Bookless, an orthopaedic surgeon, gave oral evidence[56].

   [56]          Transcript 4 July 2019, P-39 at lines 39-42.

6. The doctor stated that the Applicant had “been diagnosed with quite severe arthritis at what you would call a young age. The fact that it came on at that age is … suggestive … [of it coming] on relatively quickly [rather] than a slow degeneration [occurring] over a lifetime”[57].

   [57]          Transcript 4 July 2019, P-40 at lines 38-42.

7. The doctor stated that lifting that occurred between 2001 and 2003 would not likely have contributed to the osteoarthritis coming on earlier[58]. The doctor stated that the osteoarthritis of the hips was due to constitutional factors (meaning genetic factors), making the Applicant “more prone to osteoarthritic conditions in the absence of any other precipitating cause”[59]. The doctor stated that “… there was no history of a specific injury” or pathology as to the osteoarthritis, hence the opinion as to the left hip being constitutional[60]. The doctor stated that the osteoarthritis of the hip was genetic, noting that the Applicant has it in both hips[61].

   [58]          Transcript 4 July 2019, P-41 at lines 4-6.

   [59]          Transcript 4 July 2019, P-41 at lines 39-45.

   [60]          Transcript 4 July 2019, P-42 at lines 4-11.

   [61]          Transcript 4 July 2019, P-48 at lines 14-25.

8. The doctor stated that he thought it most unlikely that physical work of two years in service had any contribution to subsequent lumbar spondylosis[62]. The doctor stated that the Applicant has a condition described as Scheuermann’s Disease, “a condition that is developmental in nature and is related to disc degeneration”, that “develops during adolescence and the growing phases of the spine, which is known to produce lumbar spondylosis”[63]. The doctor stated that the “spondylosis was related to the underlying condition of the Scheuermann’s Disease, as opposed to … physical activity”[64]. The doctor stated that Scheuermann’s Disease is “stable, and … there is a progressive, slow, [disc] degeneration, which occurs throughout life”[65]. The doctor stated that the "[Applicant] had an underlying condition which predisposed him to lumbar spondylosis” and that he did not “believe [that] it was his service” that caused the lumbar spondylosis[66]. The doctor did not accept that with Scheuermann’s Disease as an underlying factor of lumbar spondylosis, that it could be aggravated by repetitive trauma[67]. The doctor did not accept that carrying and lifting loads in excess of 20 kilos during service would be causative of lumbar spondylosis, in circumstances where there was work done as a plasterer prior to service[68].

   [62]          Transcript 4 July 2019, P-41 at lines 15-26.

   [63]          Transcript 4 July 2019, P-41 at lines 27-36.

   [64]          Transcript 4 July 2019, P-41 at lines 27-36.

   [65]          Transcript 4 July 2019, P-43 at lines 15-18.

   [66]          Transcript 4 July 2019, P-45 at lines 39-41.

   [67]          Transcript 4 July 2019, P-46 at lines 44-46.

   [68]          Transcript 4 July 2019, P-46 at lines 35-40 and P-48 at lines 1-14.

9. On 9 September 2019 the Applicant filed further evidence as to lumbar spondylosis, relating to the lifting and carrying of loads[69]. Further to that evidence dated 9 September 2019 of the Applicant, the Respondent filed a supplementary report of Dr Bookless (dated 14 October 2019) on 15 October 2019, as to the review of that further evidence, confirming that Dr Bookless has “no cause to change [his] opinions previously expressed in [his] initial report” and oral evidence[70].

   [69]          Exhibit 9, Annexures.

   [70]          Exhibit 11.

   CONSIDERATION

10. The date when the Applicant first sought medical treatment for lumbar spondylosis was in 2008[71]. The date when the Applicant first sought medical treatment for osteoarthritis of the left hip was in 2014[72]. Impairment is defined in section 4(1) of the Act as “the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”. As referred to above, the Applicant did state that he had some back pain during service. However, that pain alone was not accompanied by evidence as to the loss of the use or the damage or malfunction of any part of the body or of any bodily system or function or part of such system or function as defined by section 4(1) of the Act. In Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [47]-[48] and [58] per Logan J, it was held that pain is not of itself an impairment as defined in the Act. There is no evidence as to an incapacity for work by reason of lumbar spondylosis or osteoarthritis of the left hip, prior to 2008. As to either the osteoarthritis of the left hip and/or the lumbar spondylosis, there was not therefore an impairment before 2008. In that there is therefore satisfaction that the date of the disease was on or after 13 April 2007 for the purposes of section 7(4) of the Act, the definition in section 5B of the Act applies. The Applicant submitted that the test in section 5B of the Act was applicable[73], as did the Respondent[74].

    [71] Exhibit 1, T5.2, page 89 and Transcript 4 July 2019 P-21 at lines 4-15.

    [72] Exhibit 1, T5.6, page 100 and Transcript 4 July 2019 P-21 at lines 17-24.

    [73]          Transcript 4 July 2019, P-54-58.

    [74]          Submissions of the Respondent filed 16 August 2019 at paragraphs 6-19.

11. The Applicant submitted that the evidence of Dr Cunneen did indicate that the service contributed to a significant degree to the aggravation of the lumbar spondylosis and/or the osteoarthritis of the left hip[75]. The doctor did not state that the service of the Applicant was the most significant or crucial factor, but that the service may have accelerated the onset of the degenerative diseases[76]. Dr Cunneen stated that in his opinion the defence service was an “aggravation, acceleration or symptomatic exacerbation” of the degenerative diseases[77]. The doctor was of the opinion that the service contributed not solely or as the main factor but as a significant contributing factor in the early onset of the Applicant’s degenerative joint disease involving his hips and his lumbar spine[78]. The doctor limited his opinion when the period in question was reduced to February 2003 by the cardiac condition[79].

    [75]          Transcript 4 July 2019, P-55 at lines 41-46 and P-56 at lines 1-9.

    [76]          Transcript 4 July 2019, P-35 at lines 36-38.

    [77]          Transcript 4 July 2019, P-36 at lines 11-15.

    [78]          Transcript 4 July 2019, P-28 at lines 19-24.

    [79]          Transcript 4 July 2019, P-35 at lines 5-12.

12. The Respondent submitted that the opinion of Dr Bookless should be preferred to that of Dr Cunneen[80].

    [80]          Submissions of the Respondent filed 16 August 2019 at paragraphs 31-32.

13. The evidence of the Applicant, including the lifting performed at Katherine, was that the service did potentially contribute to the aggravation of lumbar spondylosis and osteoarthritis of the left hip. That evidence identifies a duration of about two years of relevant service (section 5B(2)(a)), referring to the particular tasks involved (section 5B(2)(b)). The evidence of the Applicant also refers to other activities of the Applicant, including plastering before and after service and representative rugby union as a tighthead prop (section 5B(2)(d)). The evidence of Dr Bookless refers particularly to the predisposition of the Applicant to the aggravation, by reason of the Scheuermann’s Disease (section 5B(2)(c)).

14. In Comcare v Sahu-Khan [2007] FCA 15 at [14]-[16] per Finn J, it was relevantly stated:

    “It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as “material”: see eg Repatriation Commission v Bendy [1989] FCA 170; (1989) 10 AAR 323 at 325. That usage is not how the term ‘material’ in the phrase “in a material degree” is used in the SRC Act. The legislative history of this definition makes this plain.

    There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word “material” in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word “materially” in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –

    4. In a material degree; substantially, considerably.

    An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’.

    Bearing in mind that the course of statutory construction is often not aided by       substituting for the word used in an enactment, another word which is not so used,      probably the best that can ultimately be said is that the s 4 definition:

    (i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;

    (ii) ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);

    (iii) whether this will be so in a given case will be a matter of fact and degree.”

15. The evidence is that the employment of the Applicant with the RAAF contributed to the aggravation of the lumbar spondylosis and osteoarthritis of the left hip. The Applicant stated that he had some “niggles and pains here and there but nothing that I thought that was … concerning”[81]. The evidence of Dr Cunneen for the Applicant was that the contribution was not to a degree that is substantially more than material: “not the main factor”[82], “not the sole factor”[83] not the most significant or crucial factor[84], “may have accelerated onset of degeneration”, “was a factor in early onset of diseases”[85] and those opinions were then limited by the reduction of the period[86]. The evidence as to weights that were lifted and the frequency and repetitive lifting of those weights in the period 2001-2003 is a material contribution, but not to a degree that is substantially more than material in “matter of fact and degree”, having regard to the time period in service. That is to deal with the issue in accordance with the definition in section 5B of the Act, having regard only to the evidence of Dr Cunneen, without further consideration of the evidence of Dr Bookless.

    [81]          Transcript 4 July 2019, P-8 at lines 46-47.

    [82]          Transcript 4 July 2019, P-28 at lines 19-24.

    [83]          Transcript 4 July 2019, P-28 at lines 19-24.

    [84]          Transcript 4 July 2019, P-35 at lines 26-27 and 36.

    [85]          Transcript 4 July 2019, P-28 at lines 22 -23 and P-36 at lines 12-13.

    [86]          Transcript 4 July 2019, P-35 at lines 12-13.

16. In that there is not therefore accord with the definition of disease in section 5B of the Act, there is not an injury in accordance with section 5A of the Act suffered by the Applicant. Therefore, in that injury is defined in section 4 as having the meaning given by section 5A, the Commonwealth is not liable to pay compensation in accordance with section 14 of the Act in respect of the injury suffered by the Applicant.

    DECISION

17. The decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

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

Associate

Dated: 29 January 2020

Date of hearing:

Date of final submission filed:

4 July 2019

15 October 2019

Advocate for the Applicant:

Mr Ken Cullen

Solicitor for the Respondent: 

Mr Jamie Watts
Australian Government Solicitor   

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	12 April 2007

… 41  Application of amendment of the definition of disease (section 5B)

(1) The definition of disease in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to:
  (a)        an ailment suffered by an employee; or
  (b)        an aggravation of such an ailment;
            that the employee suffers on or after the day after this Act receives the Royal Assent.