VETERANS' AFFAIRS - claim for compensation - accepted condition of left ankle instability - whether injury of Lisfranc fracture caused by accepted condition - whether trochanteric bursitis caused consequentially by Lisfranc fracture - conflicting medical evidence - decisions under review set aside

Administrative Review Tribunal Act 2024 (Cth)

Accident Compensation Commissioner v CE Heath Underwriting of Insurance (Aust) Pty Ltd [1994] HCA 68; (1994) 121 ALR 417

Allianz Australia v TIO [2008] NTCA 12

Australian Eagle Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282

Dahoud v Victorian WorkCover Authority [2021] VCC 1903

Dasreef Pty Limited v Hawchar [2011] HCA 21

Forrester v Harris Farm Pty Ltd (1996) 129 FLR 431

Green v Wardleworth (1996) SASC 6207

Container Terminals Australia v Huseyin [2008] NSWCA 320

Pownall & Ors v Conlan Management Pty Ltd as Trustee for the Kalbarri Trust [1995] WASC 117

Repatriation Commission v Money [2009] FCAFC 11

Repatriation Commission v Smith [1987] FCA 260; (1987) 15 FCR 327 at 335

Repatriation Commission v Knight [2012] FCAFC 83

Starr v Northern Territory [1998] NTSC 90

Statement of Principles concerning Fracture (Balance of Probabilities), Instrument No. 63 of 2024

Statement of Principles concerning Joint Instability (Balance of Probabilities), Instrument No. 58 of 2019

Statement of Principles concerning Trochanteric Bursitis (Balance of Probabilities), Instrument No. 93 of 2023

1. On 30 November 2022, the applicant, Mrs McAdam, made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the decision by the Veterans' Review Board (the VRB), dated 21 October 2022, to affirm the determination that Mrs McAdam was not eligible for a pension by way of compensation under s 70 of the Veterans' Entitlement Act 1986 (Cth) (VEA) for the conditions 'left Lisfranc fracture' (2022/9965) and 'trochanteric pain syndrome' (2022/9966)[3].
2. Mrs McAdam gave evidence at the hearing.
3. Associate Professor Love, a consultant orthopaedic surgeon and Dr Ghan, a consultant orthopaedic surgeon, gave evidence at the hearing.
4. Mr Alan Anforth of counsel, instructed by KCI Lawyers represented Mrs McAdam. Mr Ben Dube, Sparke Helmore Lawyers, represented the respondent, the Repatriation Commission (the Commission).
5. The Tribunal admitted into evidence the 'Joint Tender Bundle' as exhibit R1.

1. The Commission framed the issues before the Tribunal as:[4]

(a) Whether Mrs McAdam's is entitled to compensation under s 70 of the VEA for the condition of 'left Lisfranc fracture' as a defence-caused injury, having regard to Statement of Principles concerning Fracture (Balance of Probabilities) No 95 of 2015. The Tribunal notes that the current Statement of Principles concerning Fracture is instrument number 63 of 2024 (the Fracture SOP). The relevant factor (9(1)) in the Fracture SOP is in identical terms to instrument number 95 of 2015.

(b) Whether Mrs McAdam's is entitled to compensation under s 70 of the VEA for the condition of 'trochanteric pain syndrome' as a defence-caused injury or disease, having regard to Statement of Principles concerning Trochanteric Bursitis (Balance of Probabilities) No 93 of 2023 (the Trochanteric Bursitis SOP).

(a) Mrs McAdam was born in 1965 and is now aged 59 years old.

(b) Mrs McAdam served in the Royal Australian Air Force (RAAF) for approximately 9 years in the period 1987 to 1996.[5]

(c) On 25 January 1992, Mrs McAdam completed a RAAF 'ground incident report'[6] stating 'at time stated, whilst walking at the back door of BSSC, my left ankle went out from underneath me causing the sprained ankle'.

(d) On 20 September 1993, a 'physiotherapy discharge summary'[7] records that Mrs McAdam presented on 19 January 1993 for treatment to her '(L) Ankle with 12/12 of Ant./lateral ankle aching since a bad inversion injury No#'.

(e) On 10 September 2015, Mrs McAdam signed an 'Injury Incident Report Form' that for 'Details of Incident' states 'stepped down step on deck & fell causing Liz Franc injury to left foot requiring surgery'.[8]

(f) On 14 September 2015, Dr Rabi Solaiman, an orthopaedic surgeon, in a letter, relevantly states:[9]

Thank you for referring Mrs McAdam, 50 year old lady with 6 day history of Lisfranc fracture dislocation of her left foot. She sustained this injury while holidaying in Sydney. She missed a step and rolled her foot. She landed heavily on the ground and noticed acute onset of severe pain and swelling in her foot.

(g) On 16 August 2020, Mrs McAdam lodged a claim for disability pension for (the Claim):[10]

(h) On 24 March 2021, Dr John Monagle, an anaesthetist, in a letter[11], relevantly stated 'the bursitis is the secondary consequence to her persistent low back pain...The possibility is the bursitis will recur at some stage, but is linked to the altered gait relative to her back pain and will eventually resolve once we sort her back pain more consistently'.

(i) On 22 September 2021, the Commission accepted liability for (the 1st Determination):[12]

(i) 'left ankle sprain';

(ii) 'left ankle joint instability'; and

(iii) 'lumbar spondylosis'.

(j) The 1st Determination denied Mrs McAdam's claim for 'left Lisfranc fracture' on the basis that it did not meet any factors in the relevant Statement of Principles[13].

(k) On 27 October 2021, the Commission denied liability for 'trochanter pain syndrome' (the 2nd Determination)[14].

(l) On 21 October 2022, the VRB affirmed the 1st and 2nd Determination in respect to 'left Lisfranc fracture' and 'trochanter pain syndrome', which is now under review before the Tribunal (the Reviewable Decision)[15].

1. The contentious facts for the Tribunal to determine are how Mrs McAdam sustained her 'left Lisfranc fracture' (the Fracture) on 8 September 2015 (the Incident) and whether she has an altered gait arising from the Fracture and a subsequent diagnosis of 'trochanteric bursitis' (the Pain Syndrome).
2. Mrs McAdam's evidence in her written statements about the Incident is as follows:
   • At the time of the incident on 8 September 2015, I had bare feet, so nothing to help stabilise my foot. As mentioned, I was not using anything to stabilise my ankle as the rolling/instability of my ankle incidents only occurred a couple of times a year.

I have read the decision of the Veterans' Review Board (VRB) dated 21 October 2022 (T2), in particular, paragraph 61 which refers to the incident on 8 September 2015 as a "misstep and fall". Saying a misstep is incorrect, I didn't miss the step; I had put my left foot down from the step, my ankle gave way, causing me to fall forward, just like what had occurred during the incidents where my left ankle gave way/rolled during my RAAF service.

The VRB decision also states that "there is no medical evidence of any ongoing issues or treatment for Ms McAdam's left foot injury over that almost 20-year period between 1996 and 2015". During the 20 years between 1996 and 2015, my ankle had given way, as mentioned, a couple times every year, but it didn't cause an injury that I would need to see a doctor about. I strapped my ankle when needed, so there wouldn't be anything on my medical files to reflect this. [16]

• On 8 September 201, whilst on the first day of a holiday on the Hawkesbury River, with my husband, I stepped down one step to get to another deck, once I placed my left foot on the deck, my left ankle went on me, which in turn caused me to fall. My foot stand in place but my body turned, which caused the Lisfranc injury. I was taken by my husband to Hawkesbury Hospital, who after consultation, transferred me to Nepean Hospital. The surgeon there did an ORIF and wanted me to stay there, possibly another 6 weeks so the swelling could go down, to have another operation to stabilize my foot. [17]

1. Mrs McAdam in examination-in-chief described the Incident as:

I was out on a deck with my husband having a cup of tea. I finished that. I got up and walked over to where there is one step down. We were at a rented house. There was only one step, not multiple steps. I took that step down. My ankle rolled on me. I then fell forward and twisted. My left ankle rolled. The step was a normal size step.

1. During cross-examination Mrs McAdam:
   • Agreed that the basis of her stating that her left ankle went out under her on 3 occasions during her RAAF service was from her service medical records.
   • Was taken to a document titled 'Injury Incident Report Form'[18] and stated that her signature was on the document and the handwriting detailing the incident looks like hers, but the rest of it did not look like her or her husband's handwriting. She did not otherwise recall the circumstances of the document being filled in or for what purpose. She accepted that the details of the incident were reported by her.
   • Was taken to a letter from a Dr Chris Mulligan, orthopaedic registrar, dated 9 September 2015 that states 'Thank you for accepting care of this 50 y.o. lady who sustained a left midfoot injury yesterday after falling on the stairs'.[19] She agreed that the description of the incident was either from her or hospital notes or talking to her husband.
   • Was taken to a document titled 'Progress/Clinical Notes' for the entry of 10 September 2015 and asked about the contents that the step was about 10 centimetres. [20] She did not recall whether she said that but accepted that the history in the document would have been given by her.
   • Was taken to a letter from a Dr Bal, orthopaedic registrar, undated, that states, 'She tripped from stairs on the 8/9/15'.[21] She stated that she never said she tripped on the stairs and did not know where Dr Bal got that from.
   • Was taken to a letter from Dr Solaiman, orthopaedic surgeon, dated 14 September 2015, that states 'She missed a step and rolled her foot. She landed heavily on the ground and noticed acute onset of severe pain and swelling in her foot'.[22] She denied that she told Dr Solaiman that she missed a step and rolled her foot, rather that she said she stepped down one step and my ankle rolled.
   • Was taken to a letter from Dr Goldbloom, orthopaedic surgeon, dated 9 December 2016, that states 'Debbie was on holiday on the Hawkesbury River in August last year and stumbled on one step, and sustained a lisfranc injury'.[23] She said the month in the letter was incorrect (August instead of September) and she had not said she stumbled, always that she stepped down. She did not accept that it was possible that it was the history she initially gave people or that her memory of those events was inaccurate.
   • Was taken to a document titled 'Berwick Pain Management - Patient Assessment Questionnaire' that states 'fell down 1 step causing Lizfranc injury to left foot'.[24] She accepted that the handwriting on the document was hers and she had filled out the form when she went to see them. She said that the way she had written 'fell down' in the form was not exactly what it is.
   • Was asked if it was not until she had put her claim in 2020 that she gave the history that her ankle gave way and then fell. She said that she believed there was something before that that said her ankle gave way.
   • Was asked if in fact for whatever reason she had missed the step off the deck, lost her balance that caused her to put weight on her left foot and then to fall over. She did not agree with that. She said if you miss a step your foot doesn't usually go on the ground, stay in one place and move it, turn around like it did with her. She said to do the injury that she had done her foot has to be on the ground whereas if you miss a step your feet are going wherever.
   • Was taken to her written statement where she says that Dr Ghan did not examine her in a thorough manner and only saw her walk a very short distance and asked whether she said that to contradict Dr Ghan's opinion with respect to whether she had antalgic gait. She agreed with that question.
2. Mrs McAdam in her statements gave evidence about her left ankle injuries during service with the RAAF and after as follows:
   • In my 9.5 years in the Royal Australian Air Force, I had 3 documented incidents of my ankle going on me and having to seek medical assistance. These incidents happened whilst I was wearing GP boots, meaning that the injury was not as bad as it could have been as the GP boots helped protect my ankle/foot. Three of these incidents, happened whilst walking down one step.

In the years after discharge, I had more occurrences of my ankle going on me, most times they didn't need any strapping or going to the doctor on the occasions where I needed to, I strapped my own foot. [25]

• Following my discharge from the RAAF, my left ankle randomly would roll on me maybe a couple of times a year. I never sought a doctor for these times, as I anticipated that they would only strap it up, if needed. If required, I would strap my own ankle.

As the incidents of the rolling/instability of my left ankle only occurred a couple times a year, I did not use anything to stabilise my left ankle.

At the time of the incident on 8 September 2015, I had bare feet, so nothing to help stabilise my foot. As mentioned, I was not using anything to stabilise my ankle as the rolling/instability of my ankle incidents only occurred a couple of times a year.[26]

1. Mrs McAdam was not cross examined about her evidence of her ankle instability after discharging from the RAAF up to the date of the Incident.

1. Professor Bruce Love, consultant orthopaedic surgeon, in report dated 29 November 2023, relevantly states:[27]

Ms McAdam states that whilst in the air force, she suffered three significant ankle injuries by way of strains which were managed by strapping and which continued to give symptoms in a continuing manner, subsequent to discharge from the air force.

On 8 September 2015, while stepping down one step, the left ankle gave way and this caused her to roll her foot, whereby she was subsequently diagnosed a Lisfranc injury. Initial treatment in New South Wales was by way of a closed reduction of the injury and that was followed by operations by Dr Solaiman, at first to insert metal and then to remove metal in 2015.

Because of ongoing symptoms, she consulted Dr Goldbloom, who performed a midtarsal fusion on 30 May 2017. The current metal remains in situ in the left foot.

Ms McAdam continues to experience left foot pain and walks with an antalgic gait and uses a walking stick in the right hand.

Because of ongoing pain, Dr Goldbloom referred her to Dr Monagle, who has subsequently retired but who treated her by way of spinal cord stimulator.

This was to control symptoms of back pain, which had been present for an extended period.

In addition, she began to experience symptoms in the trochanteric region of the right hip and has had a number of treatments for symptoms in that region by way of radiofrequency denervation and cortisone injections.

She is noted to walk with a walking stick in the right hand. Without the walking stick, she has a very significant antalgic gait.

Examination of the left foot reveals multiple scars, with marked dorsal tenderness and pain with rotation of the mid-foot. There is no significant restriction of ankle movement but there is no midtarsal movement.

Examination of the lumbar spine reveals a scar to the right side of the lumbar spine, which is the site used for insertion of the spinal cord stimulator with a battery present in the upper right buttock.

Lateral to the greater trochanter, local tenderness is present. There is no significant restriction of either hip.

Over a period of approximately 20 years, Ms McAdam experienced recurrent left ankle instability and ultimately suffered a more significant injury to the mid-foot by way of a Lisfranc dislocation in 2015.

This has resulted in multiple surgeries. I consider the altered gait due to the left foot disorder to have significantly contributed to spinal symptoms. The symptoms have been those of back pain and pain related to the trochanteric region of the right hip.

She has consulted a pain specialist, Dr Monagle, who has introduced her to spinal cord stimulation, the most recent of which was inserted within the last year.

I believe the spinal symptoms and the symptoms in the region of the right greater trochanter can be considered a consequence of the prolonged altered gait over the 20-year period since her first injury whilst employed with the Royal Australian Air force.

I hold the opinion that the Lisfranc injury would not have occurred if the left ankle had not been rendered unstable as a result of multiple episodes of giving way whilst in the air force.

The right hip and buttock symptoms appeared at the time of her undergoing multiple surgeries for the Lisfranc injury to the left foot and it is for that reason I connect the spinal and buttock symptoms to the foot condition. She has had a very long period of abnormal gait.

1. Mr Anforth put to Professor Love, in examination-in-chief, two scenarios as the most likely to cause the Fracture: 1. A person attempts to step down a normal size step but missed the step and fell forwards; 2. A person attempts to step down the same step, placed their leading foot on the lower step, the leading foot gave way, and they fell forward.
2. Mr Anforth then asked which of the two scenarios is more likely to produce a Lisfranc injury. Professor Love said that he had no scientific basis on which to give an answer other than it depends which method caused the maximum load to go on the foot and he though possibly scenario 1 but could not justify that with any science.
3. During cross-examination, Professor Love stated that he was entirely dependent on the history provided by Mrs McAdam of the three significant ankle injuries during her service and of the Incident. Professor Love stated that Mrs McAdam's 'trochanter pain syndrome' symptoms were because of her prolonged period of walking with an abnormal gait.
4. Professor Love stated that he had not been provided with the reports of Dr Ghan.

1. Doctor Francis Ghan, consultant orthopaedic surgeon, provided a report, dated 13 June 2023, that relevantly states:[28]

In about 1987, Ms McAdam was in recruits. She was just walking when she rolled her left ankle. She was diagnosed to having a soft tissue injury and the left ankle was strapped. Whilst in the Air Force she experienced another two or three more episodes of her left ankle rolling over. She did not have any physiotherapy. She did not have any surgery. Each time the left ankle was just strapped.

After discharge from the Army she was still experiencing rare episodes which she reported happening at about twice a year. No MRI scan or ultrasound were ever done. Usually after each episode there would be some swelling and aching. She has not had any treatment and she never wore an ankle brace.

On 8 September 2015 she was holidaying at Hawkesbury River. She was at a holiday house. She was coming down a step when she said her left ankle gave way and fell. She was under the care of Dr Rabi Solaiman, Surgeon and she underwent open reduction and internal fixation of her left foot Lisfranc fracture on 22 September 2015.

After surgery she was in a moon boot. She reported ongoing pain in her left foot and she consulted Dr Daniel Goldbloom, Ankle and Foot Surgeon. He diagnosed her to have tarsometatarsal degenerative arthritis and he recommended tarsometatarsal joint fusion. The mid-fusion procedure was performed in 2016. She reported that following surgery she had altered sensation and pain in the toes as well as pain over the dorsum of the foot.

Physical examination revealed a female looking her stated age standing 171cm and weighing 124kg. She was observed to walk well with no limp.

Left ankle was stable to inversion stress indicating intact lateral ligament complex. The lumbar spine examination demonstrated normal alignment with flexion to 90° and extension to 20°. There was no evidence of reversal of rhythm to indicate discogenic mechanical instability or evidence of sciatica.

The hips were examined and there was no localising tenderness over the trochanteric region

to indicate active trochanteric bursitis. She indicated the area around her right buttock as the

Ms McAdam, a 58-year-old female was in the Air Force for some 9½ years working as Air Force Police based at Williamstown. She underwent voluntary discharge in about 1996. Since 1998 she has been working full-time at Beacon Light as an online manager. In the Air Force she reported injury to her left ankle in about 1987. There was no actual force involved. She was just walking and she rolled her left ankle. She was treated conservatively with strapping but nothing else. Whilst in the Air Force, she reported she had two to three further episodes of rolling her left ankle. After discharge from the Air Force, she reported giving way episodes of her left ankle about twice a year associated with swelling and pain. She never had any official treatment.

On 10 September 2016, she was on holiday at Hawkesbury River. She was at her holiday house and was coming down a step. The treating doctor at the emergency department reported that she missed a step and fell. Dr Rabi Solaiman in his letter stated she sustained an injury where she missed a step going down the step. As a consequence of the force she sustained a left foot Lisfranc fracture and underwent open reduction and internal fixation by Dr Rabi Solaiman. After a year or two the pain remained and she consulted Dr Daniel Goldbloom who recommended a midfoot fusion on account of tarsometatarsal arthritis. This was undertaken in about 2017.

Following the fusion procedure the left foot pain remained ongoing. She consulted pain specialist Dr John Monagle and despite conservative pain management, her pain remained. A spinal cord stimulator was recommended and this was inserted in about 2021. Dr Monagle reported that the spinal cord stimulator has reduced her pain by 80% to 90% and this is confirmed by Ms McAdam at this interview.

There is physiotherapist's report in 1993 stating that Ms McAdam attended her clinic for treatment following rolling her left ankle. She stated that the left ankle condition was consistent with a sprain left ankle involving the anterior talofibular ligament. There was an Xray of the left foot and ankle stating no bony injuries and no evidence of left ankle instability on stress views of the left ankle. She stated that whilst in the Air Force she had about two to three further episodes of rolling her left ankle but she never had any treatment. After discharge from the Air Force she stated that she had a couple of episodes every year where she rolled her ankle.

Having reviewed the history of the left ankle conformed of the opinion that the nature of the

She had from the description of the history less than five episodes of rolling her ankle.

The most important piece of evidence was the left foot X-rays done in about 1993 which also included a stress view and there was no evidence of lateral ligament laxity. I formed the opinion that after her discharge the left ankle was essentially stable. In my opinion the cause of the left foot Lisfranc fracture dislocation on 10 September 2015 was most likely the fact that she missed a step coming down instead of rolling her left ankle and had the fall. The reasoning is that the left ankle had no evidence of instability based on the left foot stress views performed in 1993. Hence my conclusion is that the service-related left ankle sprain did not cause the left foot Lisfranc fracture.

She attributes the aches and pains in her right hip as a consequence of altered gait from her left foot injury and surgery and also from her lumbar spine. Today's examination of her right hip demonstrated no evidence of tenderness around the right trochanteric region and I am not able to diagnose the presence of trochanteric bursitis. She indicated the area of pain is more in her right buttock and this can be consistent with referred pain from her lumbar spine spondylosis.

Coming back to the question of whether altered gait could cause the right trochanteric bursa, in my opinion there is no evidence on observation today that her gait was significantly altered

consequence of the left foot injury and surgery. The possibility also includes that the cortisone and PRP injections under the direction of Dr John Monagle had taken effect. The more likely scenario in my opinion is that she has referred pain from her lumbar spine spondylosis into her right buttock.

In my opinion there is now no evidence of right trochanteric pain syndrome and in my opinion, there is insufficient evidence to say that altered gait from her left foot injury and surgery had caused right trochanteric pain syndrome.

1. On 1 February 2024, Dr Ghan provided a supplementary report, reviewing the report of Professor Love, that relevantly states:[29]

Associate Professor Love stated "I hold the opinion that the Lisfranc injury would not have occurred if the left ankle had not been rendered unstable as a result of multiple episodes of giving way whilst in the Air Force. In my previous report, it was that Ms McAdam reported left ankle injury in about 1987. There was no actual force involved. She was just walking and she rolled her left ankle. She was treated conservatively with strapping but nothing else. She stated whilst in the Air Force she had two to three further episodes of rolling of her left ankle. After discharge from the Air Force, she reported giving way episodes of her left ankle about twice a year associated with swelling and pain. She never had any official treatment. In 1993, the physiotherapist report reported that Ms McAdam attended a clinic for treatment following rolling of her left ankle. She stated that the left ankle condition was consistent with a sprain of the left ankle involving the anterior talofibular ligament. There was an X-ray of the left foot and ankle stating no bony injuries and no evidence of left ankle instability on stress views of the left ankle.

Opinion: The diagnosis of a sprain to the left ankle implies involvement of the anterior talofibular ligament. Injury to the anterior talofibular ligament alone does not cause ankle instability. This is consistent with the normal stress views of the left ankle noted in 1993. The main anchor for stability of the left ankle lateral ligament complex would be the calcaneofibular ligament and if this ligament was damaged the stress views would be positive. Therefore, with a normal stress view there is no evidence of left ankle instability as implied by Dr Bruce Love. If the ankle was indeed unstable, she would have more than four or five episodes of rolling over whilst in the Air Force, which was not the case here. Hence, I strongly disagree with Associate Professor Love's opinion that the left ankle had been rendered unstable because of

the multiple episodes of giving way whilst in the Air Force. There simply is no evidence of this.

Associate Professor Love stated "I have not determined that there is any underlying pre-existing or constitutional condition". Associate Professor Love stated that the main cause of her trochanteric bursitis was because of altered gait. Referring back to my report, under "Physical Examination", she was observed to walk well with no limp. This is contrary to Associate Professor Love's findings "She is noted to walk with a walking stick in the right hand. Without the walking stick, she has a very significant antalgic gait". Furthermore, Associate Professor Love stated "Lateral to the greater trochanter, local tenderness is present". In my report, I stated there was no localising tenderness over the right trochanteric region to indicate active trochanteric bursitis. She indicated the area around her right buttock as the site of pain. It is my firm opinion there is no convincing evidence of trochanteric bursitis.

Conclusion: Associate Professor Love cited antalgic gait as the cause of the right trochanteric bursitis. I found she did not have an antalgic limp and even if she does have an antalgic limp, I do not hold the opinion that this can cause trochanteric bursitis. Trochanteric bursitis in my clinical experience is constitutional and age-related and fluctuates in intensity.

Based on these anatomical effects, it will be hard to explain the cause of antalgic gait if there was one. I contend there were no factors that can be considered pain producing and hence resulting in an antalgic gait. There is no evidence of any pain producing factors in the left ankle and foot that can cause an antalgic gait.

The objective testing was careful examination of the left ankle and foot as I have stated and careful observation of her walking the examination room and around the hall. There was no altered gait.

Associate Professor Love did not obtain the findings of the left foot stress views report that there was no evidence of instability of the left ankle on stress views in 1993**. A stable left ankle on stress views indicates a stable left ankle and in my opinion highly unlikely to cause the rolling of the left ankle resulting in a fall as she was coming down the step in 2015 resulting in the left Lisfranc fracture dislocation**. This is in accord with Mr Rabi Solaiman that the cause of the injury was that she missed a step and fell. In my opinion the cause of the left Lisfranc fracture was simply a misstep causing her to fall and not because she rolled her ankle. (bold added by Tribunal)

1. Dr Ghan gave evidence at the hearing.
2. During examination-in-chief:
   • Dr Ghan was asked to comment on Mrs McAdam's evidence that he had only observed her walk 6 steps in rebuttal to Dr Ghan's observation that she walked well with no limp.
   • Dr Ghan described the setup of his examination room and how it opened onto the waiting area where he observed Mrs McAdam walk into the examination room for a distance of 6-7 metres and then out again.
   • Dr Ghan disputed Mrs McAdam's account of him not examining her lumbar spine and hips.
   • Dr Ghan opined that Mrs McAdam did not have ankle instability because of an x-ray he had seen during the preparation of his report. Further, he stated that Mrs McAdam did have ankle instability that her ankle would have rolled on more occasions regardless of wearing high type boots.
3. During cross-examination:
   • Dr Ghan accepted that Mrs McAdam had about 20 incidents of rolling the ankle since discharge from the RAAF and before the Incident.
   • Dr Ghan could not recall if Mrs McAdam was using a cane at the time of his examination of her but there was no notation that he made in that regard.
   • Dr Ghan said that whether or not Mrs McAdam had a VEA-accepted Condition of 'ankle instability' did not affect his judgment that she did not have that condition.
   • Dr Ghan stated that he did not believe Mrs McAdam's evidence as to her description of her fall.
   • Dr Ghan said there was no evidence of an unstable ankle.
   • It was put to Dr Ghan whether hypothetically a person with an unstable ankle stepped down a step of some 10 centimetres with their left ankle could their ankle collapse or not. Dr Ghan conceded that it was possible, likely probable, for the person to fall if the ankle gave way.

1. Mr Anforth, for Mrs McAdam, contends that:[30]

(a) Mrs McAdam's VEA-accepted Condition of left ankle instability 'caused her to be susceptible to future post discharge injuries if and when the ankle gave way, which is what the Applicant has consistently maintained since the lodgement of the claim'.

(b) The acceptance of the VEA-accepted Conditions is 'an admission that those injuries existed at the time of discharge in 1996 and were still present as at 26 May 2020'.

(c) The opinion of Dr Ghan contrary to the VEA-accepted Conditions are 'not only inconsistent with the Respondent's own extant determination, but their acceptance would constitute an error of law'.

(d) The VEA-accepted Conditions are 'an admission that those injuries existed at the time of discharge in 1996 and were still present as at 26 May 2020'.

(e) That 'the left ankle joint instability left her with a permanent weakness and vulnerability to sustaining further future post discharge injuries when the ankle gave way, and that this is what in fact happen in the fall in 2015. This is the connection required by section 120B.'

(f) 'On this contention, the Lisfranc injury is itself a 'defence caused injury' because it is 'consequential' to an accepted injury. Consequential injuries are different to secondary injuries. If an employee suffers a compensable injury which has left them with a weakness or susceptibility that contributes to a second non-compensable injury, the effects of the second injury are still thereby compensable because a sufficient causal nexus to the employment still exists.'[31]

(g) There are no contradicting witnesses to the Incident and the 'case for the Respondent is constructed entirely around the nomenclature used by various doctors in their clinical records'.

1. During the hearing Mr Anforth provided the Tribunal a document with headings and authorities that will be dealt with in the Tribunal's consideration below.
2. Mr Anforth in closing submissions took the Tribunal through the authorities provided above to support the contention:

(a) That the Tribunal should not be persuaded that the various descriptions of Mrs McAdam's mechanism of injury during the Incident are:

(i) Firstly, that there is not anyway of determining whether the doctor records exactly what is said when making the clinical notes.

(ii) Secondly, that the words used are consistent in a degree of generality with Mrs McAdam's evidence of the mechanism of the injury.

(iii) Thirdly, the Tribunal should not make an inference that Mrs McAdam is not telling the truth about the mechanism of the injury based on the clinical notes.

(b) Dr Ghan did not believe Mrs McAdam but he 'may have known motivations for that'.

(c) Mrs McAdam was the only one present at the Incident and there is no contrary evidence.

(d) Dr Ghan's opinions should not be relied upon by the Tribunal because he did not rely on the assumed facts of how Mrs McAdam's injury occurred and that his function was to express an opinion on those assumed facts.

(e) Dr Ghan's concession that it was probable that a person with an unstable ankle would fall if the ankle rolled taking a step, requires the Tribunal then to determine whether on the balance of probabilities that causation is satisfied.

(f) The Tribunal should prefer the evidence of Professor Love because he accepted the assumption of how the injury occurred when providing his opinion.

1. In reply to Mr Dube's closing submissions, Mr Anforth contended that:

(a) Firstly, when Mrs McAdam was reporting to doctors after the fall, she was not making a claim to the DVA, rather she was being treated for a painful fracture, so her reporting to the doctors wasn't one that required the specificity later required when making a claim.

(b) Secondly, Mrs McAdams was not challenged in cross-examination about her evidence of ankle instability in the period after her RAAF service and the Incident. Dr Ghan, reluctantly, accepted that she had given a history of ankle instability.

(c) That evidence of 20 falls in the period leading up to the Incident is indicative of a propensity or vulnerability or a susceptibility consistent with the DVA's finding of liability for her unstable ankle.

1. The Commission contends that Mrs McAdam 'did not suffer defence-caused ankle instability' at the time of the Incident and relies on:[32]

(a) A 'lack of contemporaneous evidence corroborating any ongoing history of ankle instability in the period between the Applicant's discharge on 1 September 1996 and the incident of 8 September 2015'.

(b) The opinion of Dr Ghan, an orthopaedic surgeon, that there is no evidence of ankle instability.

(c) Mrs McAdam's VEA-accepted condition of left ankle instability 'does not constitute evidence that the Applicant was experiencing service-related ankle instability as at 8 September 2015'.

(d) If the Tribunal accepts that Mrs McAdam was suffering from her VEA-accepted condition of left ankle instability at the time of the Incident, the Incident did not occur because of ankle instability because of the 'differing accounts' of the mechanism of the injury and the Tribunal should prefer the contemporaneous accounts of the Incident 'which do not describe the ankle "giving way"'.

1. In closing submissions, Mr Dube contended that:

(a) Unless the Tribunal can be satisfied on the balance of probabilities that 'the fracture arose or followed on from the ankle giving way' then the Tribunal cannot be satisfied that here is a connection with service as required under the Fracture SOP.[33]

(b) Mrs McAdam was not being untruthful, rather her recollection of what occurred is not reliable because of the contemporaneous clinical records not recording that her ankle gave way during the Incident.

(c) Greater weight should be given to the clinical notes than to Mrs McAdam's recollection of the Incident.

(d) For the pain syndrome condition, it is not the proper test that it is a consequential or secondary injury. The Tribunal is required to apply the SOP to determine if a factor is met and there is a connection to service.

(e) Professor Love's answer to the hypothetical scenario put to him during examination-in-chief about how the fracture occurred was inconsistent with Mrs McAdam's version of events.

(f) Though Dr Ghan was 'not the most engaging witness to say that he shouldn't be believed because he was somewhat cantankerous is in my submission not sufficient'.

(g) The assumed fact that acceptance of Mrs McAdam's ankle instability as a service related condition does not deal with the question of whether or not the causative event leading to the fracture and it was open to Dr Ghan to express an opinion that he thought that was unlikely.

(h) Dr Ghan's opinion that Mrs McAdam did not have a pain syndrome was not challenged in cross-examination and to say that opinion should not be accepted now is contrary to law in terms of putting material to a witness.

1. Put bluntly, the Commission contends that Mrs McAdam's evidence as to the circumstances of the Incident should not be believed.

1. There is no controversy, and the Tribunal is reasonably satisfied because of the uncontested medical evidence, that Mrs McAdam suffered a 'left Lisfranc fracture' on 8 November 2015, and that the relevant factor is 9(1) of the Fracture SOP, 'having significant physical force applied to or through the affected bone at the time of clinical onset' is satisfied.
2. The parties are at odds as to whether Mrs McAdam had left ankle instability at the time of the Incident and how she fractured her foot.

Did Mrs McAdam have ankle instability at the time of the Incident

1. To determine whether Mrs McAdams had ankle instability at the time of the Incident it is necessary to resolve the inconsistencies in the medical evidence between Dr Ghan and Professor Love.
2. Professor Love opined, relying on Mrs McAdam's as a historian, that Mrs McAdam had 3 significant ankle injuries during her RAAF service and the symptoms continued after discharge.
3. At the time of Professor Love providing his opinion, the Commission 2 years previously had accepted Mrs McAdam's condition of 'left ankle joint instability' by application of a factor in the SOP concerning joint instability, instrument number 58 of 2019 (the Joint Instability SOP).[34]
4. Dr Ghan opined that Mrs McAdam never had 'left ankle joint instability' based on a 1993 X-ray of her left ankle and had no regard to the acceptance by the Commission of the condition.
5. The Joint Instability SOP does not require medical imaging to determine connection to service for acceptance of the condition.
6. The Commission on one hand accepted that Mrs McAdam had 'left ankle joint instability' at the time of her discharge as it had accepted liability for that condition but contended that there was no evidence that she had the condition at the time of the Incident.
7. There is an inherent dissonance to the Commission's acceptance of Mrs McAdam's VEA-accepted Condition of 'left ankle joint instability' as at the time of her discharge and then not at the time of the Incident because its expert says she never had the condition.
8. It is not open to the Tribunal to go behind the acceptance by the Commission of Mrs McAdam's condition of 'left ankle joint instability'. The evidentiary basis of Repatriation Medical Authority (RMA) SOPs are binding under the VEA.[35]
9. This dissonance affects the Commission's contentions about the mechanism of the injury, because it relies on Dr Ghan to opine as to whether Mrs McAdam had ankle instability at the time of the injury where he does not accept she ever had the condition.
10. As such Dr Ghan, despite the history provided to him of left ankle instability, did not believe Mrs McAdam's account of the mechanism of the injury. He said so during cross-examination.
11. Mr Anforth cited Robert Forrester v Harris Farm Pty Limited and Ors (1996) 129 FLR 431 for the contention that Dr Ghan had failed in his duty as an expert witness by going behind the assumed facts that Mrs McAdam had left ankle instability from her discharge from service and persistently until the Incident.[36]
12. In Forrester, Miles CJ states at [30]:

It is a trite principle of evidence law that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub-stratum of facts, which facts are proved by the evidence in the case, exclusive of the evidence of the expert, to the satisfaction of the Court according to the appropriate standard of proof. Whether or not the expert believes in that sub-stratum of facts or knows them to be true or is satisfied that they are true, is completely beside the point. The expert's function is to express an opinion based on assumed facts, not to express a view on whether the assumptions are justified. (See Clarke v. Ryan [1960] HCA 42; (1960) 103 CLR 486.)

1. The plurality of the High Court in Dasreef Pty Limited v Hawchar [2011] HCA 21 at [64] cited Forrester for the proposition that:

Expert evidence is inadmissible unless the facts on which the opinion is based are stated by the expert - by way of proof if the expert can admissibly prove them, otherwise as assumptions to be proved in other ways.

1. Undoubtedly Dr Ghan was an appropriate expert as an orthopaedic surgeon to give an opinion in respect of the Fracture and whether Mrs McAdam had the VEA-accepted Condition of 'left ankle joint instability' at the time of the Incident.
2. However, Dr Ghan, by going behind the decision of the Commission to accept Mrs McAdam's condition of 'left ankle joint instability' and provide his opinion based on that assumption went beyond what was required of him in giving expert evidence.
3. Further, Dr Ghan's acceptance in cross-examination that Mrs McAdam had rolled her left ankle on approximately 20 occasions from the end of her service to the Incident is inconsistent with his opinion on her not having ankle instability at the time of the Incident.
4. The strong inference from Dr Ghan's evidence was that he did not believe Mrs McAdam's in that regard as well.
5. Mr Anforth cited Dahoud v Victorian WorkCover Authority [2021] VCC 1903 for his contention about the reliability of Dr Ghan as an expert witness. In Dahoud, Judge Robertson at [245] held that Dr Ghan's expert evidence proceeded from an incorrect factual basis.
6. Dr Ghan was a difficult witness and had to be directed by the Tribunal to answer a question from Mr Anforth that Dr Ghan had unilaterally decided he did not want to answer. Mr Dube conceded as much when he described his own witness Dr Ghan as 'cantankerous' and 'not the most engaging witness' in closing submissions. The Tribunal agrees with that characterisation of Dr Ghan as a witness.
7. The Tribunal is reasonably satisfied that Mrs McAdam had her VEA-accepted Condition of 'ankle instability' at the time of the Incident because:

(a) The Tribunal found Mrs McAdam to be a credible witness. She maintained consistency in her evidence and answered forthrightly to any inconsistencies put to her.

(b) The Tribunal is reasonably satisfied that Mrs McAdam's did injure her left ankle on three occasions whilst in service with the RAAF because that is consistent with her evidence and her RAAF medical records of January 1992[37], January 1993[38], and August 1995[39].

(c) The Tribunal is reasonably satisfied because of Mrs McAdam's uncontested evidence that she rolled her ankle on up to 20 occasions in the period from the end or her RAAF service up to the time of the Incident.

(d) There is an inherent dissonance to the Commission's acceptance of Mrs McAdam's VEA-accepted Condition of 'ankle instability' as at the time of her discharge and then not at the time of the Incident in circumstances there is no evidence before the Tribunal that her 'ankle instability' had resolved during that period, particularly in circumstances that the Commission does not contend that she did not roll her ankle periodically leading up to the Incident.

(e) The Tribunal does not accept the evidence of Dr Ghan's that there is no evidence that Mrs McAdam ever had 'ankle instability' because:

(i) The Tribunal relies on the Commission's acceptance of that condition arising from Mrs McAdam's service in accordance with the Joint Instability SOP.

(ii) The Tribunal accepts Mrs McAdam's evidence as corroborated by her RAAF medical records as to her injuries to her left ankle.

(iii) The Tribunal prefers the opinion of Professor Love, consistent with Forrester, because his opinion was based on the assumed fact that Mrs McAdam had the condition of 'left ankle joint instability' at discharge from service.

(iv) It is inconsistent with Dr Ghan's concession of the fact during cross-examination that Mrs McAdam periodically rolled her ankle, up to 20 times in the period from the end of her service to the Incident.

The mechanism of injury causing the Lisfranc fracture

1. As to the mechanism of Mrs McAdam injury, the Commission contends that the contemporaneous clinical notes in the period after the Incident are inconsistent with Mrs McAdam's recounting later in her claim and her evidence should not be relied upon.
2. Mr Anforth, for Mrs McAdam, contends that the language used in the clinical notes is not inconsistent, or at least not exclusionary of Mrs McAdam's recounting of the Incident.
3. For the contention that the Tribunal is entitled to discount the inconsistencies in the evidence between Mrs McAdams and the medical practitioners who made the clinical notes after the Incident, Mr Anforth cites Container Terminals Australia v Huseyin [2008] NSWCA 320 per Basten JA at [8]:

I agree with MacFarlan JA that the appellant undertook a difficult exercise in seeking to challenge findings of credit, both with respect to the plaintiff and with respect to his wife. The manner in which the established principles are to be applied was considered recently in Skinner v Frappell [2008] NSWCA 296 at [4]- [16]. In the present case the appellant sought to challenge the acceptance of oral testimony of the plaintiff in part on the basis of inconsistent histories given to medical practitioners. The apparent inconsistencies were put to the plaintiff in cross-examination, without obtaining any significant concession. Her Honour was entitled to discount the inconsistencies, for reasons which might have been repeated, but which are too commonplace to require repetition. They include the following:

(a) the medical practitioner who took the history was not cross-examined about the accuracy of what was recorded (often, for good reason, because it is unlikely that he or she will have any real recollection of the circumstances in which the record was made);

(b) medical histories were taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort;

(c) the histories did not make reference to the questions which elucidated the replies;

(d) the material recorded was a summary of answers rather than a verbatim recording, and

(e) there may be a range of factors, including fluency in English, the practitioner's knowledge of the background circumstances of the accident and the patient's understanding of the purpose of the question, which will affect the content of the history.

1. Mr Anforth submitted that reasoning of Basten JA in Container Terminals had been followed in the cases of Mason v Demasi [2009] NSWCA 227 and Austen v Tran [2022] ACTSC 114. The Tribunal notes that in Mason, Basten JA cited his previous reasoning from Container Terminals.
2. Suffice to say, intermediate appeal courts have found that in considering the inconsistencies between the clinical notes and Mrs McAdam's evidence, those inconsistencies can be discounted where the Tribunal accepts her evidence. As Basten JA said in Container Terminals such a proposition is 'too commonplace to require repetition'.
3. Mr Dube in addressing Container Terminals said that the Commission was not asking the Tribunal to elevate the clinical records to a higher status factually and ignore Mrs McAdam's evidence, but to give greater weight to the contemporaneous records where there was a complete absence of evidence at the point of time of the Incident of Mrs McAdam's ankle giving way and this brought into question the reliability of her evidence some ten years later.
4. Consistent with Container Terminals Mrs McAdams did not concede in her evidence that her recollection of the Incident was incorrect, the medical practitioners who made the clinical notes after the Incident were not called to give evidence, the histories contained in the clinical notes do not make reference to the questions asked by the medical practitioners, they were not prepared for the purpose of a claim to the Commission and on their face are a summary rather than a verbatim recording of what Mrs McAdam told them.
5. In the context of Mrs McAdam's VEA-accepted Condition for 'ankle instability' from her RAAF service and her uncontested evidence that she rolled her ankle on up to 20 occasions in the years from then to the Incident, it is difficult to sustain the Commission's contention that the Tribunal should then make a finding to prefer the clinical notes of treating doctors whose descriptions do not expressly exclude that Mrs McAdam rolled her ankle when she fell. The language of the clinical notes does not rise to that level.
6. The Tribunal is reasonably satisfied that Mrs McAdam fell after rolling her left ankle when taking a step down, causing the Fracture, because:

(a) As found above the Mrs McAdam had her VEA-accepted Condition of 'ankle instability' at the time of the Incident.

(b) The Tribunal found Mrs McAdam to be a credible witness.

(c) The Tribunal discounts the inconsistencies between the evidence of Mrs McAdam and the clinical notes, consistent with the reasoning of Container Terminals applied to Mrs McAdam's circumstances and is reasonably satisfied that Mrs McAdam rolled her left ankle and fell causing her Lisfranc fracture.

(d) In coming to that finding, the Tribunal relies on the evidence of Dr Ghan and Professor Love who both opined that if a person rolled their left ankle and fell going down a stair, then a Lisfranc fracture was a probable outcome.

Is Mrs McAdam's Lisfranc fracture connected to service under the Fracture SOP

1. Mr Anforth contends that if the Tribunal finds that Mrs McAdam had the VEA-accepted Condition of 'joint instability' at the time of the Incident, making her susceptible to rolling her ankle, and the mechanism of the Fracture was that she rolled her ankle then the Fracture was consequential to the VEA-accepted Condition, and it follows that the Commission is liable.[40]
2. In support of this contention, Mr Anforth cites Australian Eagle Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282 at [132]:

If at the time of the second accident, the physical consequences of the first accident have stabilised to the degree that they can fairly be regarded as spent and as leaving only a vulnerability to injury from future trauma, the incapacity flowing from the second accident cannot be regarded as a result of the first accident but must be regarded as the result of the second accident only. ... If, however, a workman's condition is still unhealed or unstable and the incapacity would not have occurred but for that unhealed or unstable condition, the incapacity must be regarded as resulting from the first accident as well as from the second accident. Moreover, where the second accident is a mere aggravation or recurrence of the injury sustained in the first accident and is brought about by ordinary and reasonable conduct on the part of the workman, the consequent incapacity must, in my opinion, be regarded as a result of the first accident as well as the result of the second accident

1. The Commission relies on it its contention that Mrs McAdam did not have her VEA-accepted Condition of 'joint instability' at the time of the Incident and that the mechanism of the Fracture was not as a result of her rolling her ankle.
2. Mr Dube cited Repatriation Commission v Money [20029] FCAFC 11 at [86] for the contention that there is a significant limitation on the circumstances in which a decision maker can find that a disease is defence-caused.
3. The facts of Money were in respect of a death claim under the VEA where the relevant factor relied on in the SOP was the 'inability to obtain appropriate clinical management' to establish liability applying the test in s 70(5)(d) of the VEA that the Commission had to be satisfied to its reasonable satisfaction that the claimed disease was 'contributed to in a material degree by, or was aggravated by, any defence service'.[41]
4. Dowsett J, in Money posits a two-step process: [42]

Firstly, the Commission must on the material before it, identify any connection between the disease and a veteran's service. Secondly, it must consider whether the relevant statement of principles "upholds the contention" that the disease is, on the balance of probabilities, connected with such service.

1. Mr Dube also cited the decision of Repatriation Commission v Smith [1987] FCA 260; (1987) 15 FCR 327 for the proposition that when deciding a matter to a reasonable satisfaction there is a 'distinction of substance to be drawn between probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other'.[43]
2. The Tribunal accepts that the correct approach is consistent with the reasoning in Money and Smith.
3. The Tribunal is reasonably satisfied that the Fracture is connected to Mrs McAdam's service under the Fracture SOP because:

(a) The Tribunal's finding that Mrs McAdam had her VEA-accepted Condition of 'joint instability' at the time of the Incident.

(b) The Tribunal's finding that the mechanism of the Fracture was Mrs McAdam rolling her left ankle and falling, and such mechanism was a probable cause of the Fracture on the evidence of the medical experts.

(c) The Tribunal is reasonably satisfied that the mechanism of the Fracture meets the requirement in factor 9(1) of the Fracture SOP, namely that Mrs McAdam's fall, after rolling her left ankle, resulted in 'having significant physical force applied to or through the affected bone at the time of clinical onset'.

(d) Consistent with the reasoning in Australian Eagle, Mrs McAdam's VEA-accepted Condition of 'joint instability' being unstable at the time of the Incident caused the Fracture with the consequence of the Commission being liable for the Fracture.

1. Dr Ghan and Professor Love disagree as to whether Mrs McAdams has a diagnosis of Trochanteric Bursitis.
2. The Trochanteric Bursitis SOP defines the condition as 'a symptomatic disease involving inflammation of the bursae around the greater trochanter of the hip' with the note that 'Clinical manifestations of trochanteric bursitis typically include pain and tenderness in the region of the lateral hip or buttock that usually worsens with physical activity'.
3. The relevant factor from the Trochanteric Bursitis contended by Mrs McAdam is factor 9(8) that provides 'having a significantly abnormal gait for at least the 4 weeks before the clinical onset or clinical worsening of trochanteric bursitis'.[44]
4. Professor Love provides a diagnosis of Trochanteric Bursitis:

I consider the altered gait due to the left foot disorder to have significantly contributed to spinal symptoms. The symptoms have been those of back pain and pain related to the trochanteric region of the right hip.

I believe the spinal symptoms and the symptoms in the region of the right greater trochanter can be considered a consequence of the prolonged altered gait over the 20-year period since her first injury whilst employed with the Royal Australian Air force.

I hold the opinion that the Lisfranc injury would not have occurred if the left ankle had not been rendered unstable as a result of multiple episodes of giving way whilst in the air force.

The right hip and buttock symptoms appeared at the time of her undergoing multiple surgeries for the Lisfranc injury to the left foot and it is for that reason I connect the spinal and buttock symptoms to the foot condition. She has had a very long period of abnormal gait.

1. Dr Ghan does not agree that Mrs McAdam has a diagnosis of Trochanteric Bursitis:

She attributes the aches and pains in her right hip as a consequence of altered gait from her left foot injury and surgery and also from her lumbar spine. Today's examination of her right hip demonstrated no evidence of tenderness around the right trochanteric region and I am not able to diagnose the presence of trochanteric bursitis. She indicated the area of pain is more in her right buttock and this can be consistent with referred pain from her lumbar spine spondylosis.

Coming back to the question of whether altered gait could cause the right trochanteric bursa, in my opinion there is no evidence on observation today that her gait was significantly altered consequence of the left foot injury and surgery. The possibility also includes that the cortisone and PRP injections under the direction of Dr John Monagle had taken effect. The more likely scenario in my opinion is that she has referred pain from her lumbar spine spondylosis into her right buttock.

In my opinion there is now no evidence of right trochanteric pain syndrome and in my opinion, there is insufficient evidence to say that altered gait from her left foot injury and surgery had caused right trochanteric pain syndrome.

1. The Commission relies on Dr Ghan not being challenged in cross-examination on his opinion that there is no diagnosis of Trochanteric Bursitis, and it is difficult for the Tribunal not to accept Dr Ghan's opinion without Mr Anforth putting contrary material to him.
2. The Tribunal does not accept the Commission's contention that Dr Ghan not being challenged on his opinion on whether Mrs McAdam had a diagnosis of Trochanteric Bursitis results in the Tribunal being obliged to accept Dr Ghan's opinion. This is because Dr Ghan was briefed with the opinion of Professor Love that provided a diagnosis of Trochanteric Bursitis prior to preparing his supplementary report so the issue of diagnosis was joined.
3. What the Tribunal must determine are the facts necessary to find the premise of the opinions of Dr Ghan and Professor Love, as required by factor relied upon in the Trochanteric Bursitis SOP, namely whether Mrs McAdam had a significantly abnormal gait for at least 4 weeks before the clinical onset of Trochanteric Bursitis (if a diagnosis of such is found).
4. Mr Anforth did cross-examine Dr Ghan as to his observations that Mrs McAdam did not have an altered gait at the time of her attendance for examination by him. Dr Ghan described observing Mrs McAdam walking from his waiting room to his examination room and then again when she left. Dr Ghan could not specifically recall if Mrs McAdam was using a walking stick but considered the lack of notation in this regard in his report was consistent with his practice to support the fact she was not.
5. The distance from the waiting room to the examination room was explored during cross-examination but did not assist the Tribunal in coming to a finding. Dr Ghan's observation in his report that Mrs McAdam's gait might have been treated because of 'cortisone and PRP injections' leaves open the possibility, although discounted by Dr Ghan, that she had an underlying abnormal gait that was not observed by Dr Ghan at the time of his examination of Mrs McAdam.
6. Professor Love was not cross-examined on his observations of Mrs McAdam's gait.
7. Mrs McAdam was not cross-examined on Dr Ghan's observation of her gait at the time of her attendance for examination or otherwise in her evidence about her gait.
8. The Tribunal is reasonably satisfied that Mrs McAdam had a significantly abnormal gait for at least 4 weeks before the clinical onset of Trochanteric Bursitis because:

(a) The Tribunal accepts the unchallenged evidence of Mrs McAdam that:

(i) she can only walk downstairs sideways, holding onto a railing or person, she cannot bend her foot, she always uses a walking stick if going a distance of more than 1 km or in areas she is not conversant with due to uneven surfaces and she cannot stand on her foot in one place for even a short time;[45] and

(ii) she walks with an altered gait since the Incident and a cane helps.[46]

(b) The Tribunal accepts the evidence of Professor Love as her treating orthopaedic surgeon whose unchallenged evidence was that Mrs McAdam had an abnormal gait, caused by the Fracture, for at least 4 weeks before the clinical onset of her Trochanteric Bursitis.

(c) Dr Monagle's observation of Mrs McAdam's abnormal gait is also given weight.

(d) Dr Ghan's opinion of Mrs McAdam not having a diagnosis of Trochanteric Bursitis is not given any weight because it was based, at least on part, on his finding that she did not have abnormal gait.

Is Mrs McAdam's Trochanteric Bursitis connected to service under the Trochanteric Bursitis SOP

1. Mr Anforth contended, consistent with his citing American Eagle, that if Mrs McAdam's altered gait arises from an acceptance that her Fracture is connected to her service under the Fracture SOP, then her Trochanteric Bursitis is connected to service by satisfying factor 9(8) of the Trochanteric Bursitis SOP.
2. Mr Dube relied on Dr Ghan's opinion of there not being a diagnosis of Trochanteric Bursitis, altered gait and the Fracture not being connected to Mrs McAdam's service.
3. The Tribunal is reasonably satisfied that Mrs McAdam's Trochanteric Bursitis is connected to her service because:

(a) The Tribunal's finding that it is reasonably satisfied that Mrs McAdam's Fracture is connected to her service under the Fracture SOP.

(b) The Tribunal finding that it is reasonably satisfied that Mrs McAdam had a significantly abnormal gait for at least 4 weeks before the clinical onset of Trochanteric Bursitis, satisfying the requirement of factor 9(8) of the Trochanteric Bursitis SOP.

(c) Mrs McAdam's Fracture caused her abnormal gait and her Trochanteric Bursitis with the consequence of the Commission being liable for her Trochanteric Bursitis under the Trochanteric Bursitis SOP.

1. The Tribunal sets aside the decision under review and substitutes the decision with the decision that:

(a) The applicant suffers from a Lisfranc Fracture and Trochanteric Bursitis (the established conditions).

(b) By reason of the established conditions being defence-caused, the applicant is eligible for a pension by way of compensation under s 70 of the Veterans' Entitlement Act 1986 (Cth).

(c) The date of effect of this decision is in respect to:

(i) the Lisfranc Fracture, 16 August 2020; and

(ii) Trochanteric Bursitis, 2 August 2021

(d) The application is remitted to the respondent for assessment according to law.

[2] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

[4] Respondent's Statement of Facts, Issues and Contentions (Respondent's SFIC) dated 23 August 2022 at [2].

[13] Statement of Principles concerning Fracture (Balance of Probabilities), No. 95 of 2015.

[30] Applicant's opening submissions, dated 22 July 2025 (Applicant's Opening) at [4]-[9]; Applicant's Statement of Facts, Issues and Contentions, dated 19 July 2024 (Applicant's SFIC) at [34]-[38].

[31] Citing Australian Eagle Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282 at [132]; Allianz Australia v TIO [2008] NTCA 12; Starr v Northern Territory [1998] NTSC 90.

[32] Respondent's SFIC at [4.9]-[4.17].

[33] Citing Repatriation Commission v Smith [1987] FCA 260; (1987) 15 FCR 327 at 335; Repatriation Commission v Money [2009] FCAFC 11 at [86].

[35] Section 120B of the VEA; see Repatriation Commission v Knight [2012] FCAFC 83 at [13]- [17].

[36] See also Pownall & Ors v Conlan Management Pty Ltd as Trustee for the Kalbarri Trust [1995] WASC 117.

[41] Money, per Finn and Edmonds JJ at [3].