Walker and Department of Defence for Comcare [2002] AATA 52 (29 January 2002)

Last Updated: 31 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 52

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/220

GENERAL ADMINISTRATIVE DIVISION )

Re Robert John Walker

Applicant

And Department of Defence for Comcare

Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member & Dr P Staer, Member

Date 29 January 2002

Place Perth

Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

...........(sgd R D Fayle).......................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - Army service - SAS regiment - rigorous training - pes planus (flat feet) - acquired pes planus - mobile pes planus - whether pre-existing condition - whether a "disease" - whether Army service activities and incidents caused or aggravated the ailment - whether applicant suffered a trauma to his feet.

Safety, Rehabilitation and Compensation Act 1988 - ss4(1) definitions "disease", "impairment", "injury"; 14, 16

REASONS FOR DECISION

29 January 2002 Mr R D Fayle, Senior Member & Dr P Staer, Member

1. On or about 4 June 1997, Robert John Walker ("the applicant") lodged a claim for Rehabilitation and Compensation with the Department of Defence ("the respondent"). The relevant injury was described as "acquired pes planus" and occurred in March 1971, aggravated by incidents occurring in August 1971 and in 1975. On 1 August 1997 the respondent determined that the claim be disallowed. On 1 June 1998, after reconsideration, a delegate of the respondent affirmed its determination of 1 August 1997. The applicant applied to this Tribunal on 11 June 1998 to review that determination.

2. At the hearing the applicant was assisted by Mr P Lofdahl. Mr R Hooker, counsel, represented the respondent. The Tribunal had before it documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The applicant and Mr Desmond Williams, orthopaedic surgeon, each gave evidence. The following exhibits were taken into evidence:

A1 Report of Dr Rod Moore, 19 July 1999

R1 Report of Dr Michael Quinlan, 3 May 1999

R2 Report from SKG Radiologists, Dr Clem McCormick, 21 April 1999

R3 Report Mr Desmond Williams, 17 May 1999

3. The applicant impressed the Tribunal as a truthful witness. He enlisted in the Australian Regular Army on 23 April 1970 when he was 20 years of age. This enlistment related to the applicant's then requirement to undertake two years of National Service. His recruit training was at Puckapunyal from which he was posted to the Infantry Corps. On 14 September 1970 he was selected to undergo the Carter Course in order to join the SAS Regiment. He commenced the basic parachutist training in March 1971. He remained in the Australian Regular Army until he requested discharge effective from 14 May 1976.

4. The applicant did not complete his first attempt at basic parachutist course, in March 1971 because, as is noted on his record, "Pte Walker injured his ankle during Ground Training and was unfit to continue training" (T4). That report recommended that the applicant remain at Air Support Unit to commence the next scheduled basic parachutist training course, 125/71. The Tribunal notes that there does not appear to be any record, other than the above reference, to the incident that caused the applicant's withdrawal from the basic parachutist course in March 1971. The applicant described his recollection of that incident. He said the injury occurred at Williamstown base, when he jumped in "clean fatigues" carrying a parachute pack etc of about 40 lbs. The parachute was a "non-steerable urban parachute". He said he landed heavily on a stump or mallee root experiencing pain in the left ankle region. He said that he applied Denco rub and strapped his ankle that night and the next day was sent to the RAP because "Bluey Paragon saw me limping". As a result he went to Newcastle hospital where his foot was x-rayed. He was provided with crutches before returning to base where he was given light duties for a week. He did not continue jumping for six weeks during which time he acted as an orderly and did mess duties. He then completed the course at Williamstown (T6 & T7). This involved nine jumps without incident, after which he returned to the SAS regiment at Campbell Barracks. The applicant also successfully completed a signals course and a medics course (T8). The applicant said he had no further problems (with his left ankle) until he was required to complete a patrol course in Harvey in Western Australia. That course, in mid-winter, lasted two weeks, during which they were continually on the move. They were required to carry a 45lbs sand bag in their packs. As a result, the applicant said he experienced a very sore left foot, which he reported on 31 August 1971 (T11). The treating doctor at Hollywood Repatriation Hospital out patients department reported:

"Recently developed pain over lateral 3 metatarsal heads following bush exercise. No history of traumatic incident."

5. His left foot area was x-rayed that day and Dr JCK Yin reported "Left foot: No bony lesions present" (T11, p.22).

6. The applicant said that Dr Love of Hollywood Repatriation Hospital diagnosed stress fractures to his left foot and ordered a fortnight's rest. The only treatment was analgesics. The Tribunal documents do not include any relevant clinical notes in this regard. There is nothing further in the applicant's medical history or clinical notes made during his Army service relating to possible injury to his feet. In evidence he said that he did not complain about pain or discomfort to his feet because he did not wish to be seen as a malingerer and in any event he was able to self-treat because he was a qualified medic. He also said that because the SAS worked in teams it was important for him to be available otherwise he would let the team down. He said that twice yearly he was required to complete a 9-mile run in 90 minutes and annually a 20-mile run in 31/2 hours, and a 2-mile run within 16 minutes. All these exercises were completed in full gear. He said that it took a lot of training to be able successfully to complete those runs. He said he was required to run in general combat boots and he always experienced sore feet after every run and training run. The applicant said that in 1973 he experienced cramping in his feet whilst on exercises. He said he always had blisters on his feet, which he treated with an alcohol based medication. The applicant said that he was often hurt as a result of hard landings from parachute jumps and he "had some horrific" experiences in this regard. He said that once the RAAF dropped them over the Pearce base tarmac and he injured his heel, which he strapped. Medical records indicate diagnoses and treatment for knee injuries, which are not the subject of the claim under review.

7. The applicant's Army medical records, both at the time of enlistment (T11, pp19-20) and discharge (T11, p18), are on record. At enlistment the applicant was examined on 17 February 1970. The examining doctor recorded "Feet normal". The applicant reported having had a fractured femur whilst playing football at age 9, otherwise, everything else was normal, including "knee, back and joints". Upon discharge the examining medical officer noted, on 28 April 1976, the fracture experienced in 1959 (when 9 years of age), injury to his right knee joint in 1975 and removal of a loose body there that year and similar treatment to the right knee joint. No mention is made of any problems with the feet.

8. The evidence before the Tribunal makes it quite clear that the applicant is suffering from pes planus. The issue before the Tribunal is whether this is an injury or aggravation caused by the applicant's employment with the respondent. Before discussing the evidence of Dr Rod Moore and Mr D Williams, which, in relation to the applicant's pes planus do not agree as to its origins, the Tribunal reviews the other medical evidence in this regard.

9. Dr J B Cardwell, a general practitioner, examined the applicant in relation to his claimed injuries, on 14 February 1995. His report is at T18 and, apart from the right knee joint, refers to a shortness in the left leg and "collapsed arches". In regard to the leg length, he reports a 2 cm difference with the right leg longer than the left. This may have relevance to the Tribunal's deliberations in the context of the pes planus findings.

10. Dr Cardwell reports that the applicant's genu valgus of both knees may be the result of the applicant having fractured his left femur when aged 9 years. Dr Cardwell notes that the applicant's shortness in the left leg was not noticed when examined for Army service. In regard to the pes planus he states:

"The veteran has unilateral mobile flat feet. Both at enlistment and discharge medical examinations, the feet were recorded as normal. I consider [indecipherable] flat feet he has now, he has acquired after leaving the force and most likely, also related to his old fracture of left femur creating weight bearing anomalies. An x-ray of left foot in August [indecipherable] recorded that the foot was normal." (T20, p105)

11. In the Tribunal's opinion the report of Mr Sun Lai, physiotherapist, (T28) is equivocal and of no assistance to the Tribunal in its present inquiry.

12. Dr M Hay's report of 24 January 1996 (T29), to the applicant's then representative, states that the applicant has "mobile pes planus". He refers to x-rays of the applicant's feet reported by Dr Steve Cartoon (not before the Tribunal) as follows:

"Exostoses are noted arising from the medial margins of the basis of the terminal phanges of the major halluces. No other focal bone abnormality is detected. There is slight flattening of the medial longitudinal arches and slight subluxation of the calcaneocuboid joints bilaterally. No other joint abnormality is detected. No soft tissue abnormality is detected."

Dr Hay then states:

"Although the x-rays of his metatarsophalangeal joints are normal, I am sure he has some very early degenerative changes here. These exostoses of the terminal phlanx of both big toes and his pes planus I am sure are diagnoses of foot symptoms.

...

You ask if these are from running in unsuitable footwear. I don't think we can see that any of these are directly due to footwear but I am sure the running that you describe in his time in the SAS has aggravated all of these problems.

Similarly, I am sure bad parachute landings have also aggravated his foot problems." (T29)

Dr Hay also refers to the shortening of the left lower limb, which he attributes to the accident when the applicant was aged 9 years (T29).

13. Dr Hay sent a further report dated 17 April 1996, to clarify what he meant by the term "mobile pes planus". He explained that he meant that the applicant's foot is not rigid. He stated that the applicant has a moderate degree of pes planus and he adds:

"His flat feet were obviously not noted when he joined the Army in 1970. I think it is therefore reasonable to describe this as acquired pes planus."

14. Dr Michael Quinlan carried out a dynamic localised bone scan of the applicant's feet in May 1999. His report is exhibit R1. He concludes by saying:

"None of these changes suggest acute problems and are more consistent with degenerative disease with the calcaneal uptake consistent with plantar spurs."

15. Dr C McCormick carried out a radiological examination of the applicant's ankles and feet with weight bearing lateral views. His report, exhibit R2, states:

"... Erect films confirm marked pes planus without focal bony abmormality."

16. Dr Rod Moore, who practices in the field of sports medicine, did not give evidence. However, in his oral evidence Mr D Williams discussed at length Dr Moore's report (A1). In his report Dr Moore states:

"The first injury [the applicant] reported was to his right knee in about 1975. This was preceded by a parachuting incident in 1970 in which there was a question of a fracture in the right foot and ankle region. This was treated in plaster and crutches for about six weeks. About a year later he had some form of stress injury to his right foot associated with prolonged distance running in army boots....

On examination there is ... significant pes planus, more marked on the right than the left; normal subtalar joint range; diffuse tarso-metatarsal joint tenderness. There is about 2cm of shortening of the left leg when compared to the right.

... There seems little room for doubt that problems in the right foot stem from a combination of a parachuting incident in 1970 and a subsequent stress injury to the foot about a year later.

... With the medical standards that he would have been subjected to on entry to the SAS it is unlikely that the condition of pes planus would have enabled him to pass a medical. The pes planus is asymmetrical, more marked on the right that the left. This is consistent with the acquired nature of the condition and I suspect relates to previous episodes of injury and overuse including prolonged physical activity in unsatisfactory footwear." (A1)

17. Mr D Williams gave evidence supplementing his written report of 17 May 1999 (R3). This report notes past problems with the applicant's feet, his right knee, his right and left hips, his lower lumbar area andthe shortness in his left leg. In relation to the pes planus he states:

"On weight-bearing [the applicant] had significant longitudinal arch collapse. X-rays of the ankle and feet with weight bearing lateral views were taken on 21 April 1999.

The findings were of a little deformity in the shaft of the left third metatarsal which was consistent with a united fracture.

Erect films confirmed marked pes planus without focal bony abnormality.

... Overall the x-rays reveal the previous fracture of the shaft of the third metatarsal. There is some irregularity of the posterior tibia of the right ankle reflecting previous trauma and there is evidence of an avulsion injury as defined.

As well as the trauma present there was a marked flat foot pes planus deformity and there was no underlying development bony abnormality for this problem.

... on the x-rays and bone scan we are seeing evidence of past trauma but there is no marked or significant localised traumatic degenerative arthritis and there are no underlying developmental anomalies but there is the flat foot deformity shown on the plain x-ray.

The parachuting activities and the activities generally of his active service in the SAS can explain the evidence of the traumatic injuries but there is no explanation for the underlying significant pes planus flat foot deformity other than it being long-standing and I am uncertain whether is was documented during his initial medical assessments for the Services ...I don't see that the particular activities in the Army or any of the trauma he suffered in the Army have contributed to the emergence of what is a significant pes planus flat foot deformity.

... I have seen no evidence in [the applicant's] history or clinical review of the pes planus being acquired but rather it is symmetrical in both feet and is of long standing and events between 1970 and 1976 while he was in the Australian Regular Army would not have contributed to the flat foot deformity.

... There is no evidence that [the applicant's] Army service has ... caused any acceleration in the emergence of the flat foot deformities and rather they represent increasing emergence of the underlying deformity related to his own anatomy, uninfluenced by his war (sic) service or to any particular trauma ..." (R3)

18. Before considering the oral evidence of Mr Williams, it is apparent that the views of Drs Cardwell, Hay, Moore and Williams are not consistent or necessarily reconcilable. In sum, Dr Cardwell believes the applicant's pes planus was acquired after leaving the Army. Dr Hay intimates that the pes planus may be reasonably described as acquired, and probably after he joined the Army. Dr Moore suspects that the pes planus relates to previous episodes of injury and overuse [whilst in the Army] including prolonged physical activity in unsatisfactory footwear. Mr Williams on the other hand, cannot attribute the pes planus to any of those causes and specifically eliminates trauma as a possible cause. It is apparent that the Tribunal needs to consider in particular the reason or reasons for the disparity of opinion which appear to exist between Dr Moore and Mr Williams.

19. The Tribunal notes that the brief history recorded in the first paragraph of Dr Moore's letter (A1) is not consistent with the evidence of the applicant at the hearing. That is not to say that Dr Moore misunderstood the facts as recounted to him by the applicant, but rather, that under oath at the hearing there were differences. The first significant difference is that Dr Moore understood that the applicant fractured his right foot in 1970. The evidence is that injury was in March 1971. Also, Dr Moore understood that the treatment of the right foot was for a fracture, which was put in plaster. That is not the evidence before the Tribunal, but rather the treatment was limited to rubbing with ointment, strapping, analgesics and use of crutches for a period. There is no evidence of fracture at that time. Nor is there any clinical record in evidence of stress fractures in the applicant's right foot, as referred to by Dr Moore. However, it is noted that Mr Williams refers to x-rays taken in 1999 showing "... a little deformity in the shaft of the left third metatarsal which was consistent with a united fracture". The differences in the factual history seem to the Tribunal to be of some significance. If Dr Moore proceeded on the basis that the right foot was fractured in the parachute incident in March 1971 and later subject to stress fractures then it may well have influenced the conclusions drawn about the pes planus, conclusions inconsistent with those of Mr Williams.

20. Mr Williams, an orthopaedic surgeon, specialises in arthritis surgery, foot surgery and related areas. He has over 30 years experience in these fields of practice. He was asked to comment upon the report of Dr Quinlan (R1). He said that there was no underlying bone or joint abnormality related to flat foot. However, there was evidence of trauma to the right ankle which he described as "perhaps a little avulsion fracture to the ankle but not the foot" (Tr. p.3). He also said that there was no evidence of arthritis in either the ankle or foot joint. He also referred to the plain x-ray report (R2) noting that the changes did not suggest "any acute problems but are consistent with degenerative disease or a bit of damage or arthiritis and the calcaneal uptake was consistent with plantar spurs or plantar fasciitis", (Tr. p.3)

21. Mr Williams elaborated on his report in several respects. He said that the parachuting activities do not offer any explanation for the significant flat foot deformity, which is long standing. He further stated:

"... I didn't see that the activities [the applicant] described with his Army service would have created any increasing or progressive flat foot because we're dealing with a normal X-ray so there wasn't damage there from Army service or activities that could have contributed to flat foot and there wasn't activity on the bone scan suggesting any process going on in the mid-foot area that would have contributed to this collapse. So I say it as simply a flat foot or pes planus of normal aetiology that comes from childhood and adolescence through to adulthood." (Tr. p4)

22. Mr Williams noted the x-rays and the bone scan, which indicate ankle trauma and metatarsal trauma but none in the mid foot area where the arch collapses. On this basis he took issue with Dr Moore's opinion that these were "consistent with the acquired nature of the condition [flat foot/collaped arches]", which Dr Moore attributed to the condition not being detected at enlistment or discharge, overuse including prolonged physical activity and unsatisfactory footwear. Mr Williams said in this regard:

"... in my 30 years plus of orthopaedics I haven't had experience of ... physical activity creating flat feet, I haven't seen it in long distance runners ... they don't get flat feet. A lot of them have flat feet, it doesn't stop them running and being successful, we know that with some of our Olympic athletes. ... there's no proof for that, there's no published theories of long distance runners, of parachuters who all get flat feet, it just doesn't happen. Flat feet come from childhood and adolescence and its about different things. There are some single flat foot problems that come with very severe fractures where the mid-foot is damaged and shattered and it's collapsed but this isn't this foot, we've got normal x-rays here, so I just don't find that consistent. (Tr. p5)

23. Mr Williams said that when he saw Dr Moore's report (A1), he was prompted to do some research to find out if flat foot could have adult onset due to physical activity. He said he looked at two "solid books" which did not have any reference to this phenomenon.

24. Mr Williams was asked his opinion as to whether the applicant's activity in the Army could have aggravated a pre-existing condition of flat feet. He said in response:

"Only if there's fractures in the mid-foot and arthritis, as I've said. You know, the sort of someone drops an iron bar on their mid-foot and it's shattered and they get arthritis, that can create it, but normal activity it's just not there, it doesn't create aggravation, ..." (Tr p.6)

Mr Williams also expressed the opinion that without arthritis in the feet then the person does not experience pain although they do experience discomfort or an ache with flat feet (presumably after exercise).

25. Mr Williams, in response to questions put to him by Mr Loftdahl, said that it is not always easy to pick up mild or moderate cases of flat feet - that one needs to examine the feet from the ground level with the patient turning. Also the assessment needs to be made with full weight bearing or standing. He suggested that it was not surprising that a person with a mild or moderate case of flat feet might pass an Army enlistment medical examination and that the flat feet may not be picked up during service. Mr Williams, also in response to a question put by Mr Loftdahl, said that stress fractures noted after the bush exercises, with no history of trauma have no bearing on the applicant's pes planus, (Tr p.8).

26. Finally, Mr Williams was asked by the Tribunal whether, having regard to the facts as outlined , whether those circumstances or any one of them may have resulted in the applicant acquiring pes planus. In response, Mr Williams reiterated his earlier evidence that none of those would alter the architecture of the bones and joints in the feet, although the activities "may cause blisters, upset the skin, ... cause aches and strain, but it doesn't create pes planus or developmental flat foot." (Tr p13)

The submissions

27. Mr Loftdahl conceded that the evidence of Mr Williams establishes a fact that the applicant had pes planus prior to his Army enlistment and service. To the extent that the Tribunal is reasonably satisfied on the evidence before it, it is of the opinion that that concession is warranted. Having made that concession, Mr Loftdahl then submitted that the evidence supports the contention that the applicant's rigorous Army service aggravated the applicant's pre-existing pes planus causing his chronic feet discomfort/aches. He submitted that therefore the respondent is liable, pursuant to s16 of the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act"), in respect of the cost of reasonable medical treatment, which specifically is the cost of remedial/properly designed footwear.

28. The relevant provisions of the SRC Act are cited below for convenience:

4. (1) In this Act, unless the contrary intention appears:

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a

material degree by the employee's employment by the Commonwealth or

a licensed corporation;

impairment means the loss, 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;

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee,

being a physical or mental injury arising out of, or in the course

of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a

disease) suffered by an employee (whether or not that injury arose

out of, or in the course of, the employee's employment), being an

aggravation that arose out of, or in the course of, that

employment;

but does not include any such disease, injury or aggravation

suffered by an employee as a result of reasonable disciplinary

action taken against the employee or failure by the employee to

obtain a promotion, transfer or benefit in connection with his or

her employment;

Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay

compensation in accordance with this Act in respect of an injury

suffered by an employee if the injury results in death, incapacity

for work, or impairment.

(2) Compensation is not payable in respect of an injury that is

intentionally self-inflicted.

(3) Compensation is not payable in respect of an injury that is

caused by the serious and wilful misconduct of the employee but is

not intentionally self-inflicted, unless the injury results in

death, or serious and permanent impairment.

16. (1) Where an employee suffers an injury, Comcare is liable to

pay, in respect of the cost of medical treatment obtained in

relation to the injury (being treatment that it was reasonable for

the employee to obtain in the circumstances), compensation of such

amount as Comcare determines is appropriate to that medical

treatment.

(2) Subsection (1) applies whether or not the injury results in

death, incapacity for work, or impairment.

(3) For the purposes of subsection (1), the cost of medical

treatment shall, in a case where the treatment involves the supply,

replacement or repair of property used by the employee, be deemed to

include any fees or charges paid or payable by the employee to a

legally qualified medical practitioner or dentist or other qualified

person for a consultation, examination, prescription or other

service reasonably required in connection with that supply,

replacement or repair.

(4) An amount of compensation payable by Comcare under subsection

(1) is payable:

(a) to, or in accordance with the directions of, the employee;

(b) if the employee dies before the compensation is paid and

without having paid the cost referred to in subsection (1) and

another person, not being the legal personal representative of the

employee, has paid that cost-to that other person; or

(c) if that cost has not been paid and the employee, or the legal

personal representative of the employee, does not make a claim for

the compensation-to the person to whom that cost is payable.

(5) Where a person is liable to pay any cost referred to in

subsection (1), any amount paid under subsection (4) to the person

to whom that cost is payable is, to the extent of the payment, a

discharge of the liability of the first-mentioned person.

(6) ... (9).

29. Mr Hooker, in his submissions, pointed out that it was not until 18 years after his discharge from the Army in 1976 that the claim for compensation was made. That is a reference to the aborted claim initiated under the other legislation from which the present claim emerged. He submitted that this delay together with the evidence of the applicant's numerous injuries and treatments documented in the T documents and the paucity of any relevance to the claimed condition raises problems for the applicant in discharging his onus of proof, (based on the balance of probabilities). Mr Hooker's submitted that there might be an SAS unwritten code that there are some injuries you do not complain about, which may include sore feet, whilst there are others which are acceptable and for which one would not be adjudged a malingerer by his fellow soldiers. The applicant's evidence is that it was for that reason that he did not complain about his sore/aching/painful feet during service.

30. The Tribunal agrees with the thrust of Mr Hooker's submissions. Despite the applicant's asserted reticence to report his foot problems during Army service, there is no evidence of any trauma based substantial fracture of either foot consistent with the notion that there was some intrinsic damage to the applicant's flat feet during service. This, it was submitted, obtains notwithstanding the stress fractures discussed in evidence.

31. Also, Mr Hooker submitted that in relation to the incident at Williamstown when the applicant was injured during his parachutist course in 1971, the record shows an injury to the right ankle, not either foot. And, to the extent that the applicant relied on the later parachute incidents in August 1971 and 1975, there is no evidence of a substantial trauma to the feet. That is consistent with more recent radiological and scan evidence. Mr Hooker submitted that Mr Williams' evidence supports a conclusion that there is no cogent theory about acquiring unilateral pes planus (without substantial trauma) or an aggravation to pre-existing pes planus. He submitted that there is simply no evidence of any such trauma, an opinion shared by Mr Williams. Mr Hooker, relying on Mr Williams' evidence, submitted that in particular there is no evidence of actual trauma to the mid-foot area - and that the stress fractures referred to were not in that part of either foot. And further, there is no evidence of any trauma, which might have caused a collapsed arch.

32. Mr Hooker submitted that Mr Williams has convincingly refuted Dr Moore's contention that the applicant's pes planus was acquired as a result of his Army service activities. In this regard, it was submitted that if the applicant was indeed suffering discomfort/aches/pain when enlisted and immediately thereafter, there is no evidence before the Tribunal to explain why it took 18 years before this claim was made and treatment was sought. He suggested that there is no plausible reason as to why the applicant made a range of complaints, which were documented, and none in relation to his feet whilst in the Army.

Conclusion

33. Having regard to all the evidence before the Tribunal and for reasons substantially put to the Tribunal by Mr Hooker, the Tribunal concludes on the balance of probabilities as follows:

* The applicant has pes planus of both feet.

* The pes planus is mobile rather than rigid.

* The pes planus was not acquired in the sense that it arose from trauma.

* The pes planus was pre-existing to the applicant's Army service.

* The pes planus may have been aggravated by the injury to the applicant's femur at age 9 years; the shortness of his left leg by approximately 2-3 cms (and therefore posture); his genu valgus; possibly the injury to his right knee; or indeed incidents occurring subsequent to Army service of which there was no evidence.

* Of the above, only the injury to the applicant's right knee is related to Army service. There is no evidence that the applicant's present symptoms attributed to his pes planus are an aggravation that was contributed to in a material degree by the applicant's employment with the Australian Regular Army.

* Aggravation to the applicant's pes planus cannot be attributed, to any material degree, to activities engaged in by the applicant during Army service.

34. For the above reasons the Tribunal finds that the applicant's pes planus of both feet is not a "disease" as defined in s4(1) of the SRC Act, even thought it is clearly an "ailment suffered by an employee [the applicant]". For the above reasons the Tribunal finds that the respondent is not liable pursuant to s14 of the SRC Act, to pay to the applicant compensation, including a liability pursuant to s16 of that Act.

Decision

35. Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member & Dr P Staer, Member

Signed: ...............(sgd V Wong)..................

Associate

Date/s of Hearing 9 October 2001

Date of Decision 29 January 2002

Applicant's representative Mr Peter Lofdahl

Counsel for the Respondent Mr Richard Hooker