Lake and Military Rehabilitation and Compensation Commission [2009] AATA 64 (2 February 2009)

Last Updated: 3 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 64

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4194

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MATTHEW LAKE

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Mr R G Kenny, Member Dr G J Maynard, Brigadier (Rtd), Member

Date 2 February 2009

Place Brisbane

Decision

The Tribunal: sets aside the decision under review; and substitutes its decision that Mr Lake’s chondromalacia patella is a service injury for which the Military Rehabilitation and Compensation Commission is liable.

................[Sgd]..............................
Member

CATCHWORDS

WORKERS’ COMPENSATION – Claim for acceptance of liability by the Military Rehabilitation and Compensation Commission of chondromalacia patella of right knee as a service injury – Application of Statement of Principles – Presence of meniscus damage as a service injury – Presence of meniscus injury at time of clinical onset of chondromalacia patella – Decision to deny liability set aside and substituted

Military Rehabilitation and Compensation Act 2004 (Cth) ss 6, 23, 27, 29, 31-36, 319, 335, 339, 353
Veterans’ Entitlement Act 1986 (Cth) ss 196B
Administrative Appeals Tribunal Act 1975 (Cth) s 27

McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144

REASONS FOR DECISION

2 February 2009

Mr R G Kenny, Member Dr G J Maynard, Brigadier (Rtd), Member

BACKGROUND

1. Matthew Lake served in the Australian Regular Army from November 1995 until April 2008. On 23 March 2007, he claimed, in accordance with s 319 of the Military Rehabilitation and Compensation Act 2004 (“the MRCA”), acceptance of liability by the Military Rehabilitation and Compensation Commission (“the MRCC”) for osteoarthrosis of the right knee. Mr Lake alleged this was related to his service. On 8 October 2007, the MRCC accepted liability under the MRCA for chondral damage of the medial condyle of Mr Lake’s right knee. The MRCC denied liability in relation to chondromalacia patella, derangement of the anterior horn of the right medial meniscus and right patellar tendinopathy. The decision in relation to the rejected conditions came before the Veterans’ Review Board (“the Board”) on 1 September 2008. The Board consented to Mr Lake’s withdrawal of his claim insofar as it related to right patellar tendinopathy and determined that derangement of the anterior horn of the right medial meniscus was related to Mr Lake’s service. The Board denied his claim in relation to chondromalacia patella and Mr Lake has sought further review by the Administrative Appeals Tribunal (“the Tribunal”) in relation to that condition.

ISSUES AND LEGISLATION

2. The matter comes before the Tribunal in accordance with s 27 of the Administrative Appeals Tribunal Act 1975 and s 355 of the MRCA. It is not disputed that Mr Lake rendered defence service in the form of peacekeeping service under the MRCA[1]. The MRCC must accept liability for an injury sustained by Mr Lake if the injury is a service injury[2]. This is defined to include an injury which resulted from an occurrence that happened while the person was a member rendering defence service or which arose out of, or was attributable to, any defence service rendered by him[3]. The MRCC must also accept liability for a service injury where that injury was sustained as an unintended consequence of treatment paid for or provided wholly or partly by the Commonwealth under the MRCA or regulations made under the Defence Act 1903[4]. Liability will not be accepted if any of the exclusions set out in the MRCA is applicable[5]. In this matter, it is common ground that none of these exclusory provisions apply.
3. The decision concerning liability is to be made to the Tribunal’s reasonable satisfaction[6]. In so deciding, the Tribunal is to accept liability only if a relevant Statement of Principles published by the Repatriation Medical Authority[7] upholds Mr Lake’s contention that his chondromalacia patella is, on the balance of probabilities, connected with that service[8].

SUBMISSIONS

4. Mr Lake submitted that there were three alternative bases on which his chondromalacia patella was related to his service. The first was that it resulted from trauma to the knee incurred during a series of five service-sanctioned football games in early July 2006. The second was that it resulted because of meniscus damage which he sustained in those football games. The third was that it was an unintended consequence of treatment, provided by the Army, of his knee in August 2006.
5. Mr Clark, counsel for the respondent, accepted that Mr Lake suffers from chondromalacia patella in his right knee but submitted that there was no relationship between that condition and Mr Lake’s service. This was because there was no evidence of trauma to Mr Lake’s knee in the football games and no medical evidence to support the alternative bases raised by Mr Lake.

EVIDENCE

6. Loose bodies in Mr Lake’s right knee associated with Osgood-Schlatter’s disease were excised in 1995. However, he was free of pain in his right knee during service. His entry medical examination includes a specific reference to his right knee in terms that no abnormality was detected. He remained pain-free until his involvement in a representative touch football carnival in early July 2006 where he played five games in two days. His knee became progressively more painful during that time. It remained painful and he sought medical treatment from Dr Dale Thomas at the RAP on 24 July 2006. Mr Lake could not recall any particular incident of trauma to his knee during the games but described contact by his knee with other players and with the ground and the twisting and turning which is a normal part of the game.
7. In his clinical notes, Dr Thomas recorded Mr Lake as describing a three to four week gradual onset of knee pain. He also noted an apparent absence of swelling in the right knee. However, he saw Mr Lake some weeks after the onset of pain. A Medical-in-Confidence form (Exhibit 1 at folio 22) notes the worsening of pain and of swelling in the period after the football games. A history of the spontaneous onset of pain and of swelling at the time of the football games is referred to in a specialist medical report dated 14 February 2007. Subsequent swelling is also referred to in clinical notes dated 3 October 2006 and 10 October 2006.
8. Mr Lake underwent an MRI procedure on 7 August 2006 and was referred to orthopaedic surgeon Dr Scott Fairbairn who performed an arthroscopy on 21 August 2006. Mr Lake then underwent a rehabilitation programme involving physiotherapy and hydrotherapy. However, he continued to experience right knee pain and a further MRI was conducted on 4 December 2006. Subsequently, he was medically downgraded and was discharged from the Army on medical grounds.
9. In a report, dated 8 August 2006, Dr Fairbairn noted that Mr Lake had both anterior pain and medial aching in his right knee. The reports from the MRIs conducted on 7 August 2006 and 4 December 2006 both refer to the presence of chondromalacia patella. In the first of those, it is described as “mild”; in the second report, it is described as “moderate”. They also describe Mr Lake’s medial meniscus as normal and the lateral meniscus appearing to be intact. However, in his report dated 21 September 2007, Dr Fairbairn wrote that there was a small anterior horn fraying of the medial meniscus. While that is not consistent with the MRI reports, it is entirely consistent with the diagram drawn by Dr Fairbairn at the time of the arthroscopy. Orthopaedic surgeon, Dr Mark Dekkers in his report dated 15 May 2008, referred to Dr Fairbairn’s procedures and described a tear in Mr Lake’s medial meniscus. Dr Paul McKenzie referred to Dr Fairburn’s arthroscopy notes and described, in his report of 22 May 2007, an “anterior horn tear medial meniscus”.

CONSIDERATION

10. In determining that chondromalacia patella was not related to Mr Lake’s service, the delegate of the MRCC referred to a telephone conversation she had with Mr Lake in which he confirmed that he had not had specific trauma to his knee and that the condition was progressive in nature due to service-related activities such as lifting. Mr Lake said that he could not recall that conversation. The author of that document did not give evidence. On the evidence of Mr Lake, and that of Dr Thomas, the specialist report of 14 February 2007 and the Medical-in-Confidence form (all referred to above in [7]), we are reasonably satisfied that Mr Lake experienced pain and swelling in his right knee at the time of football games in July 2006 and that the pain became progressively worse in the weeks thereafter.
11. We accept Mr Clark’s submission that there is no medical evidence to support Mr Lake’s contention that chondromalacia patella resulted from the arthroscopy procedure as an unintended consequence of that procedure[9].
12. The Statement of Principles for chondromalacia patella is Instrument No 34 of 2001 as amended by Instrument No 27 of 2005. The relevant factors, set out at factor five of the Statement of Principles and the associated definition, read:

“(a) suffering direct trauma to the patella of the affected knee within the three months immediately before the clinical onset of chondromalacia patellae; or
(b) suffering an injury to the affected knee resulting in meniscal damage or permanent ligamentous instability within the three months immediately before the clinical onset of chondromalacia patellae; ...
...
“Direct trauma to the patella” means a blow to the kneecap causing immediate patellar pain that persists for at least 24 hours unless alleviated by analgesia; ...” (emphasis in original.)

13. Mr Lake has consistently stated that he did not experience a specific incident involving his knee during his games of football. We are satisfied that a person would need to be aware of the direct trauma to the kneecap in order to meet the definition of that term in the Statement of Principles. On that basis, we are reasonably satisfied that factor (a) is not met.
14. One means of meeting factor (b) is through an injury resulting in meniscus damage. The Statement of Principles provides no definition of the term “injury”. The Oxford Dictionary[10] defines it to include “harm” or “damage”. We are satisfied that such harm or damage may occur without the degree of realisation required in the case of direct trauma as defined above and that it may occur in the context of the physical activity associated with playing football provided there are symptoms thereafter which point to the harm or damage having occurred. In this matter, Mr Lake experienced knee pain.
15. Meniscus damage was determined to be a service injury by the Board. That, by itself, does not mean that factor (b) of the Statement of Principles for chondromalacia patella is automatically met. It is necessary for us to consider whether the meniscus damage was related to service in accordance with the relevant Statement of Principles[11]. This is Instrument No 60 of 1997 for internal derangement of the knee. It relates to torn, ruptured or deranged meniscus of the knee and was relied on by the Board in determining that the MRCC was liable for derangement anterior horn right meniscus. The factor in the Statement of Principles that the Board found to be met was:

“(a) suffering a direct trauma or a twisting or wrenching injury to the affected knee:

(i) within the six months immediately before the clinical onset of internal derangement of the knee; and
(ii) resulting in pain and swelling of the knee within the 2 hours immediately following the trauma or injury; ...”

16. The Board was reasonably satisfied that Mr Lake experienced “a twisting or wrenching injury to his right knee during the touch football titles, which resulted in pain and swelling of the knee within the required time frame”. Again, the term “injury” is not defined in that Statement of Principles and we are satisfied, on the balance of probabilities, that Mr Lake experienced some harm or damage to his knee from twisting actions, even though he was not aware of any specific incident. In this, we are satisfied that his right knee was pain-free before the football carnival but painful after it.
17. The MRI reports, noted above, do not identify meniscus damage. However, the reports of Dr Fairbairn, who conducted the arthroscopy, clearly do so. The presence of meniscus damage is also noted by Dr Dekkers and Dr McKenzie. We are of the same opinion and accept that the Board has correctly determined that Mr Lake’s meniscus damage, specifically noted by Dr Fairbairn, is a service injury in accordance with factor (a) in Instrument No 60 of 1997.
18. The first reference to the presence of chondromalacia patella is in the MRI report of 11 August 2006, relating to the procedure conducted four days earlier. At that time, the meniscus damage was also present and, accordingly, we are reasonably satisfied that the clinical onset of chondromalacia patella occurred within the time frame of factor (b) of the Statement of Principles for chondromalacia patella and that this is an injury attributable to Mr Lake’s service.

DECISION

19. The Tribunal sets aside the decision under review and substitutes its decision that Mr Lake’s claim for acceptance of chondromalacia patella as a service injury by the MRCC is successful.
    

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member and Dr G J Maynard, Brigadier (Rtd), Member.

Signed: .................[Sgd]...........................................................

Michael Buckingham, Associate

Date of Hearing 15 January 2009

Date of Decision 2 February 2009

Applicant was self-represented

Counsel for the respondent Mr C Clark

Solicitor for the respondent Dibbs Abbott Stillman Lawyers

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[1] Subsection 6(1) of the MRCA.
[2] Subsection 23(1) of the MRCA.
[3] Subsection 23(1) and paragraphs 27(a) and (b) of the MRCA.
[4] Subsections 23(2) and 29(1) of the MRCA.
[5] Sections 31 – 36 of the MRCA.
[6] Subsection 335(3) of the MRCA.
[7] In accordance with s 196B of the Veterans' Entitlements Act 1986.
[8] Subsection 339(3) of the MRCA.
[9] Under s 29 of the MRCA.
[10] The Australian Concise Oxford Dictionary (3rd ed, 1997), 686.
[11] McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144.