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VETERANS' AFFAIRS - claims for liability for lumbar spondylosis, bilateral knee osteoarthritis, bilateral plantar fasciitis and internal derangement of the knee - date of injury - whether the veteran suffers from a disease as defined under s 5B of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) - whether an ailment or aggravation was contributed to, to a significant degree by the veteran's service - decisions under review affirmed.

Administrative Review Tribunal Act 2024 (Cth)

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

Comcare v Power [2015] FCA 1502

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

Comcare v Sahu-Khan [2007] FCA 15

1. On 30 July 2024, the applicant, Mr Lester, made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the reviewable decisions made by the Military Rehabilitation and Compensation Commission (the Commission) to affirm 2 separate determinations denying liability for 'bilateral knee osteoarthritis, bilateral planter fasciitis, internal derangement of the knee'[3] and 'lumbar spondylosis'[4] under s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA).
2. Mr Lester gave evidence at the hearing. Dr Simon Journeaux, an orthopaedic surgeon, gave evidence at the hearing.
3. Mr Lester was self-represented. Ms Madi Rush, solicitor, Sparke Helmore Lawyers, represented the Commission.
4. The Tribunal admitted into evidence the 2 volume 'Tender Bundle' prepared for the hearing as exhibit R1 for volume 1 and exhibit R2 for volume 2.
5. Mr Lester in his closing submissions also sought to rely on a document provided to the Tribunal 22 July 2025 and the Commission did not object to the Tribunal considering its contents. That document is admitted into evidence as exhibit A1.

1. The Commission framed the issues before the Tribunal as:[5]

(a) The correct diagnosis for 'bilateral knee osteoarthritis, bilateral planter fasciitis, internal derangement of the knee' and 'lumbar spondylosis' (the Conditions).

(b) The correct date of injury for each of the Conditions (s 7(4) of the DRCA).

(c) If any of the Conditions are a disease, whether it was contributed to, to a 'significant' or 'material' degree, by Mr Lester's service (depending on the date of injury - s 4(1) of the DRCA prior to 2007 or s 5B of the DRCA after 2007).

(d) Whether liability arises in respect of each of the Conditions pursuant to s 14 of the DRCA.

(a) Mr Lester was born in 1951 and is now aged 74 years old.

(b) Mr Lester served in the Australian Army (Army) for approximately 7 months in the period October 1971 to June 1972 first, as a recruit at 1st Recruit Training Battalion (1 RTB or Kapooka), and subsequently as a trainee at the Army School of Signals in Watsonia, undertaking his initial employment training (IET).[6]

(c) In October 1971, Mr Lester completed an entry medical examination that provided he had no abnormalities in his, lower extremities, feet or spine. His Pulheems[7] score was P2, U2, L2, H2, EE 1, M2, S2 with a physical employment standard (PES) of fit for service in the regular Army.[8]

(d) In about November 1971, Mr Lester fell approximately 5 metres from a vertical rope he was climbing as part of his training at 1 RTB onto his back (the Fall). His evidence was that he was dissuaded from seeking medical attention at the time by the instructors supervising the training who threatened 'back squadding' him (restarting recruit training with a subsequent training platoon) and disciplinary action for 'malingering'.

(e) In an 'attendance and treatment card' for Mr Lester, it records:[9]

• 11 November 1971:

C/O (complaining of) pain on the balls of his feet since he has been marching. O/E (on examination) mobile flat feet. Rx (treatment) Panadol ... buy rubber inner soles.

Could you assess re. (reference) further treatment and suitability to continue training.

(f) On 12 November 1971, an 'in/out patient' referral to an orthopaedic surgeon states:[10]

C/O(complaining of) pain on the balls of his feet since he commenced recruit training. He had some mild symptoms prior to training but he v (very) little walking or sporting activity before induction. O/E (on examination) long, mobile flat feet. Could you assess re. (reference) further treatment and suitability to continue training.

(g) On 15 November 1971, a clinical note records:[11]

Vague history of discomfort in the feet prior to beginning training. Since training began has had pain particularly in the region of the 1st metatarsal head, the right side being more affected than the left. On examination: Mobile type of flat foot of only moderate degree. Relatively short 1st metatarsal. Callosities under the 1st metatarsal heads on both sides. I think he will be suitable to continue training if his boots can be fitted with satisfactory metatarsal arch supports which will distribute the weight further back from the 1st metatarsal region.

(h) Mr Lester's unchallenged evidence was that he was never informed of the recommendation for orthotics, and he was never supplied any during his service in the Army.

(i) In May 1972, Mr Lester completed a discharge medical examination[12] that provided relevantly he had 'any knee, back or joint injury' with comments 'recurrent dislocation of R patella - once every three months for many years'.

(j) Also in May 1972, a medical examination report provided[13] a note that his 'R knee clinically NAD' with particulars of disability 'recurrent dislocation of R patella' with a 5% degree of incapacity. His PES was previously 'FE' (fit everywhere[14]) and his Pulheems now was recorded as P3, U2, L3, EE 1, M2, S2 and a new PES of 'CZE' (communications zone everywhere[15]).

(k) Mr Lester was discharged from the Army in June 1972 on the ground that he was 'not suited to be a soldier'.[16] There is a lack of documentation in Mr Lester's service records for the grounds of his discharge.

(l) On 29 August 1983, Brigadier Rodgers, on behalf of the Director General Army Health Services (DGAHS), provided a 'minute' to the Director General Army Training (DGAT), that relevantly states:[17]

The GP Boot is designed to protect the foot and ankle during prolonged walking over rough terrain and when correctly fitted, it accomplishes this very well.

The boot is not designed to run in for more than short distances as damage to feet, ankle joint, knee and spine increase considerably at distances in excess of two kilometers.

Consequently, where prolonged running/double march in excess of two kilometers is required for training it is suggested that suitable footwear should be used - ie a running shoe.

(m) Mr Lester worked variously as a cleaner and disability support worker until he retired at 65 years of age.

(n) On 14 November 2018, the Army determined that there were grounds that Mr Lester 'could have been retired on the grounds of invalidity or of a physical or mental incapacity to perform your duties', such grounds being 'anxiety'.[18]

(o) Relevantly, the downgrading of Mr Lester's PES from FE to CZE was because of the right knee condition identified from his service records. The assessment of 'mobile type flat feet' did not affect his PES.[19]

(p) On 29 January 2022, Mr Lester lodged liability claims for bilateral knee osteoarthritis, bilateral planter fasciitis, internal derangement of the knee' (the First Claim).[20]

(q) On 13 April 2023, Mr Lester lodged a liability claim for 'lumbar spondylosis' (the Second Claim).[21]

(r) On 24 August 2023, the Commission determined that it was not liable for the Second Claim (the Second Primary Determination).[22]

(s) On 30 August 2023, the Commission determined that it was not liable for the First Claim (the First Primary Determination).[23]

(t) On 5 April 2024, after request for reconsideration, the Commission affirmed the Second Claim (the Second Reviewable Decision).[24]

(u) On 16 April 2024, after request for reconsideration, the Commission affirmed the First Claim (the First Reviewable Decision).[25]

1. Mr Lester in an email to the Commission, stated:[26]

The injuries suffered by me of my lower body such as back, knees and feet were further exacerbated by the lack of medical attention and the ongoing training such as heavy lifting, heavy weights marching and 20mile hikes with full packs and rifles in boots and other footwear that were not satisfactory for the purpose of training. I had to endure all of these medical problems during recruit training and core training even though the Army knew of my problems but were not prepared to assist me at any time. It might be interesting for you to note that after my back injury I had trouble keeping up with the rest of the platoon but I managed to do so even though I was in hell. I made it through recruits without being back squadded which was always on the cards for me. I was always under scrutiny by the training staff.

1. Mr Lester's evidence of his service in the Army, including his recounting of his fall from a vertical rope (the Fall) whilst training at 1 RTB was believable and genuine and not contested in cross-examination by the Commission.
2. The scope of dispute is in respect to the medical evidence as to the date of injury of the Conditions, subject of Mr Lester's two applications for review, and whether Mr Lester's service in the Army 'materially' or 'significantly' contributed to the Conditions.

1. A partially redacted clinical note dated 31 January 1990, states 'Ptx dislocated R patella ++ on playing sport for many years.'[27]
2. On 25 April 1990, Dr Garry Lane, a physician in general medicine, provided a letter that relevantly states 'his lowest weight was 12 stone while in the Army. His more recent stable weight was 14 stone. His weight has increased dramatically over the last few months because he has found that his chest pain is always relieved by food as well as antacids'.[28]
3. A partially redacted clinical note dated 17 November 1992, states[29] '4 days ago had to catch heavy bale at work '→ progressively ↑(increasing) R lower backache since O/E Obese +++ (significant) Tender over R S-1 joint (sacral) Pain ++ on flex (flexion), lat flex (lateral flexion) → L (rotation).'[30]
4. A partially redacted clinical note dated 12 January 2000, states[31] 'Acute back strain in shower at 0700 140/85 BP (complaining of pain) scapula to lumbar area (right sided) Rad spine NAD tender muscles laterally T5 to L2 area'[32]
5. A partially redacted clinical note dated 24 April 2001, states[33] '2 months R Plantar fasciitis p, gen (general) advice onset after new Blundstones'.[34]
6. A partially redacted clinical note with an unreadable date state[35] 'complaining of 2/52 week history of pain, left foot intermittent, on examination mild tenderness over medial and proximal left planar arch, flattish, diagnosis query gout, query plantar fasciitis'.[36]
7. On 8 January 2003, Dr Soo Wei Foo, a respiratory registrar, reviewed Mr Lester in respect to his pulmonary embolism treatment and wrote a letter that relevantly states 'However he did gain a significant amount of weight of approximately 40kg in the past 1 year'.[37]
8. A surgery consultation recorded by a Dr Ian Heyman, dated 11 March 2003, states[38] 'Several days pain medial border R foot (tender+ over navicular) - no trauma. ? gout - ? other cause.'[39]
9. A surgery consultation recorded by a Dr Graham Jacobs, dated 3 December 2003, states 'Letter written - re. second opinion. To PROF GEOFFREY DONNAN. Patient Education Leaflet - Plantar fasciitis printed.'[40]
10. A surgery consultation recorded by a Dr Kathryn O'Connor, dated 24 September 2006, states 'last wed spontaneous pain in knee and behind, hurts to walk slipped kneecap 10 years ago but diff type of pain.'[41]
11. A surgery consultation recorded by a Dr Alastair Stark, dated 12 October 2006, states 'Ongoing ache left leg, mostly around knee, but also up into back of thigh now...Note history dislocated patella, but this is not that.'[42]
12. On 21 September 2020, Dr Tyson Doneley, an orthopaedic surgeon, provided a letter to Mr Lester that relevantly states:[43]

I wish to certify that Mr Lester does indeed have severe medial compartment osteoarthritis involving both knees. This was evident as a well established finding that must have been present for a considerable period of time (unable to be determined) on x-rays that were performed on the 2nd of January 2019. It is likely that this condition pre-dated the 2nd of January 2019 by at least a number of years.

It is impossible at this point to establish a firm causal link in any respect between Mr Lester's Army service in the early 1970's and the osteoarthritis diagnoses. I understand from viewing documentation provided by Mr Lester that there was episodes of recurrent patella dislocation in the right knee. I do not believe that there is a firm causal link between the patella dislocation episodes in the right knee and subsequent development of bilateral osteoarthritis involving the medial compartments of the knee.

1. On 3 April 2023, an X-Ray of Mr Lester's lumbosacral spine, pelvis, both hips, bilateral knees, bilateral ankles and feet relevantly reports that:[44]

(a) Lumbosacral spine - 'Moderate multilevel spondylosis with degenerative related early grade 1 anterolisthesis of L5 on S1'.

(b) Bilateral Knees - 'Moderate tricompartmental joint degeneration with early varus angulation'.

(c) Bilateral Ankles and Feet - 'Moderate midfoot joint degeneration with calcaneal spurring'.

1. On 26 April 2023, Dr Alexandre Poukhov, Mr Lester's treating general practitioner, provided a diagnostic assessment that provides for a diagnosis of osteoarthritis of knees with symptom onset of 1972 and a formal diagnosis in 2019.[45] The cause is said to be 70% carrying heavy equipment in the Army, 25% flat feet not being treated and 5% general wear.
2. On 26 April 2023, Dr Alexandre Poukhov, provided a diagnostic assessment that provides for a diagnosis of lumbar spondylosis with symptom onset in 1971 and formal diagnosis in 2023.[46] The cause is said to be 70% as a result of the Fall, 25% from lifting heavy weights during Army recruit training and the remainder wear and tear over the years.
3. On 10 October 2023, Dr Anubhav Sathu, an orthopaedic surgeon, provided a letter to Dr Poukhov, stating:[47]

He is here to see me today mostly about his bilateral knee pathology. He has had problems for a number of years with his knees which he reports was down to an initial injury he sustained when he was in the ADF and he fell down a rope about 15 to 12 feet sustaining injury to both his knees. He has since that time had problems with what he describes as not just patellofemoral instability but also instability in the knee proper, but reports that this was never investigated with any appropriate specialist assessment or an MRI scan at that time. However, 6 months into his ADF career he was discharged with documentation regarding patellofemoral instability.

Since that time, he has had problems with his knees slowly worsening to the extent that now that he has reached the stage where he has quite significant rest pain, night pain and significant lack of mobility to only 5 to 10 minutes with exacerbation of pain in both his knees. He also reports subjective instability with catching type symptoms in his knee as well, along with increasing stiffness.

He has had x-rays organised by yourself which I have reviewed today and confirm severe near bone on bone arthrosis in the medial compartment with patellofemoral and lateral changes as well. Interestingly given the history of patellofemoral instability he does not have impressive arthrosis in that joint, which one would expect in the setting of long term instability. I also note his lumbar spine x-ray report confirming multilevel spondylosis with degenerative disease as well as early grade 1 anterolisthesis.

We have had a long chat today and I have explained to Peter that of course arthrosis is multifactorial in that the development of arthrosis could be as a consequence of both wear and tear, degenerative disease, but also a consequence of traumatic injuries like the one he sustained to his knee. If he had significant meniscal chondral, cruciate or collateral ligament injury this could also explain developing arthrosis, but at his age, with the history of obesity, he appreciates that he could have developed arthrosis without a significant traumatic cause. I also note that whilst he does have arthrosis in the patellofemoral joint, it is certainly less impressive than his arthrosis in his knee proper in the medial compartment.

1. On 14 December 2023, an MRI concludes that Mr Lester's lumbar spine has:[48]

Diffuse degenerative discopathy with multilevel enhancing annular fissures, facet joint arthropathy with active synovitis as detailed below. Further, combination of bilateral pars defects causing grade 1 anterolisthesis and severe foraminal narrowing is causing severe foraminal stenosis bilaterally, with the potential for bilateral L5 nerve root compression.

1. On 5 January 2024, a CT of Mr Lester's lumbar spine reports that there are longstanding bilateral L5 pars defects, resulting 'in advanced degenerative disc endplate disease and grade 2 anterior spondylolisthesis of L5 on S1' with no 'recent or acute vertebral fracture seen'.[49]

1. On 12 April 2024, Dr Simon Journeaux, a consultant orthopaedic surgeon, provided an expert medical report that relevantly provides:[50]

Mr Lester tells me that ever since he fell off this rope, he has had constant low back pain in his lumbar spine. Over the years, he has had periodic consultations with his general practitioner. In terms of imaging, I note he had x-rays of his lumbosacral spine performed on 3 April 2023. The radiologist reported moderate multilevel spondylosis with degenerative grade 1 anterolisthesis of L5 on S1. I note on 14 December 2023, he had an MRI scan of the lumbar spine demonstrating diffuse degenerative discopathy with multilevel enhancing annular fissures and with concomitant facet joint arthropathy with synovitis. Bilateral pars defects causing grade 1 anterolisthesis of L5 on S1 were also noted. On 5 January 2024, he had a CT scan of the lumbar spine demonstrating the known multilevel changes. There is also evidence of Baastrup's disease and the known bilateral pars defects at L5 and I note the radiologist has reported a grade 2 anterior spondylolisthesis of L5 on S1.

In respect of his knees, there is a contemporaneous history in the Army of recurrent patella dislocation affecting the right knee. It would seem that ever since his Army days, he has had episodic right knee patella dislocations, which in recent times occur up to once a year and which he is able to self-manage.

Mr Lester on the medical evidence has the following diagnoses:

a. Multilevel lumbar spine degenerative disc disease, with a grade 2 L5 on S1 spondylolisthesis as a result of bilateral pars defects.

b. Bilateral knee tricompartmental osteoarthritis with a history of recurrent patella dislocation of the right knee.

c. Bilateral fixed pes planus with evidence of bilateral plantar fasciitis. He in addition has mild/moderate degenerative change in both ankles and midfeet.

Has the Applicant suffered from the diagnosed condition(s) as a result of, or that was contributed to, by his service in the ADF?

If the Applicant suffers from a disease to what degree do you consider it was contributed to by his service?

What is the date of clinical onset for the condition(s)?

The clinical onset of the conditions is as follows.

a. Lumbar spine. Circa 16 January 2023 based on his attendance at general practice. There is reference to an MRI lumbar spine before this date. The underlying degenerative disease process would likely have been present for more than 20 years. The bilateral pars defects at the L5 level would have predated Army service.

b. Bilateral knee osteoarthritis. The clinical onset is 2 January 2019 based on the x-rays taken at that time.

• Flatfeet (Pes planus) - Predated Army service as constitutional.

• Plantar fasciitis - 2 January 2019 based on the x-rays taken on that date showing calcaneal spurs.
• Generalised osteoarthritis of ankles and right and left mid-foot - 2 January 2019 based on the x-rays taken on that date.

a. What impairment has the Applicant suffered due to this condition?

Mr Lester currently does suffer impairment in terms of functioning in both personal and domestic activities of daily living and his capacity to undertake social and recreational interests. This is as noted above.

b. Did the condition follow the expected pathway of recovery for this type of condition and if not, how and why did it differ from expected pathway of recovery?

Mr Lester has degenerative/constitutional conditions for which you would not expect a full recovery.

You would expect progression over time, which in fact has, in my view, eventuated particularly in respect of lumbar spine and his bilateral knee conditions.

c. Have the effects of a pre-existing or non-service-related condition overtaken the effects of this condition?

The pre-existing conditions relevant to this claim concern his bilateral flat feet and the bilateral L5 pars defects which predated Army Service. These conditions are still present but have been subsumed clinically by degenerative changes.

d. Does the Applicant continue to suffer the effects of this condition and, if not, when did the effects, such as incapacity, impairment, and the need for medical treatment, cease?

Mr Lester has ongoing incapacity and impairment and requirement for medical treatment for the degenerative/constitutional conditions affecting his lumbar spine, both knees and feet as noted above.

If the Applicant continues to suffer the effects of the diagnosed condition as a result of, or that was contributed to by his employment in the ADF:

Not applicable as his clinical presentation(s) does not relate to his ADF service.

Is there any pre-existing or non-work-related medical history or condition relevant to the claimed conditions the Applicant suffers from? If so, please describe the relevant pre-existing or non-work-related medical history or condition and the significance of the pre-existing condition to the current claimed conditions.

There was no pre-existing non-work-related medical history prior to ADF service other his flat feet and the bilateral L5 pars defects. There is a history of right patella dislocation around the time of his ADF service, but I have no evidence that this condition relates to ADF service. I suspect he has a constitutional predisposition to this condition. I do not believe, however, that it is of significant importance, given that his right knee condition effectively has been subsumed by tricompartmental knee osteoarthritis.

His only other non-work-related medical condition pertains to his significant morbid obesity, which would accelerate and aggravate the degenerative change affecting the lumbar spine, both knees and his feet. The degenerative change arose as a result of the natural history of these conditions.

Would the Applicant have developed his current 'bilateral plantar fasciitis' condition as a natural progression of a pre-existing condition irrespective of his ADF service?

1. Dr Journeaux gave evidence at the hearing.
2. During examination-in-chief, Ms Rush put to Dr Journeaux questions, relevantly:

Q. In lay person's terms, bilateral planter fasciitis, what's that condition?

1. That's just a flat foot deformity that's the opposite of a high arch deformity. It's a flat foot deformity quite common in the elderly population as one ages.
2. You just noted before, you say the lumbar spondylosis and spondylolisthesis is as a result of bilateral pars defect, correct, what is that opinion based on?
3. Well, that's based on my observations on the radiology reports and the imaging. And that is a constitutional acquired condition normally occurs sort of when you're developing as an adolescent and is present in about 5% of the population.
4. So your opinion is that the applicant' flat feet condition and the bilateral pars defects condition both predate his Army Service?
5. The flat feet condition is because it's constitutional, in other words it's just the way he was born with it, and the pars defect is the developmental condition.
6. Can I also just have you clarify why did you say the applicant's pre-service flat feet was relevant to the claim?
7. Only because a flat foot condition can, if you like cause soft tissue strain on the arch of the feet and you could argue that it would predispose, for example, to a condition such as plantar fasciitis or I meant for sprain/strain type condition.
8. It can make someone vulnerable to other foot problems, particularly in a military setting?
9. That might be the case.

1. Ms Rush took Dr Journeaux to the clinical notes at pp 96 and 97 of Exhibit R2 and asked him to interpret them (as shown above) and whether they changed his opinion on the date of clinical onset for Mr Lester's 'lumbar spondylosis'. Dr Journeaux said they did not change his opinion as the notations seemed to refer to an acute and short-lived injury.
2. Ms Rush took Dr Journeaux to the clinical notes at pp 79, 80, 81 and 82 of Exhibit R2 and asked him to interpret them (as shown above) and whether they changed his opinion on the date of clinical onset of Mr Lester's 'bilateral plantar fasciitis'. Dr Journeaux said that the clinical notes indicated some evidence of plantar fasciitis earlier than he had put in his report, he went on to say it appeared that the notes referred to both left and right foot plantar fasciitis, although the date was indecipherable on one of them. Dr Journeaux then opined that based on the additional evidence that the clinical onset of the 'bilateral plantar fasciitis' would be more likely in the early 2000s as early as 2003.
3. Ms Rush took Dr Journeaux to the clinical notes at pp 87 of Exhibit R2 and asked if their contents changed his opinion that the clinical onset for 'bilateral knee osteoarthritis' was 2 January 2019. Dr Journeaux said it did not because the entries are too non-specific to make a diagnosis purely based on those clinical entries.
4. Ms Rush asked Dr Journeaux why his opinion was that Mr Lester's 'lumbar spondylosis' was not as a result of his service in the ADF. Dr Journeaux said that Mr Lester's service was relatively short, and having regard to his medical records and the rigours of military training as a recruit and understanding the degenerative pathology was the reason that there was no contribution from Mr Lester's service in terms of his current clinical presentation of those conditions.
5. Ms Rush asked Dr Journeaux about the medical journal articles provided by him that talk about bilateral pars defects can be caused by traumatic injuries and whether there was anything from the medical imaging to indicate a traumatic injury. Dr Journeaux said trauma can potentially cause pars defects, but would have to be a significant trauma, the severity of falling off a rock face several metres landing on your feet. The symptoms of that would be pain in your back and be hospitalised, but typically 99.99% of these conditions are constitutionally acquired through development. If such trauma had occurred, it would be visible on the medical imaging and there was no such evidence.
6. Ms Rush asked Dr Journeaux his reasoning that Mr Lester's 'bilateral knee osteoarthritis' was not caused by his Army service. Dr Journeaux said that Army service for less than a year, absent a crucial ligament rupture or meniscal injury, would not contribute in any way to causation for that condition.
7. During cross-examination, Mr Lester asked Dr Journeaux questions, relevantly:
   1. Explain to me what constitutional means in a medical term?
   2. Well that's effectively the genetic predisposition to developing diseases and also ageing.
8. Mr Lester stated that he had 12 brothers and sisters and none of them had flat feet, pars defects, osteoarthritis of the knees and asked Dr Journeaux if it was genetic at least one of them would have something like that. Dr Journeaux said that he has not had the opportunity to examine Mr Lester's family or access their medical records which would have been his preference. Dr Journeaux said that Mr Lester was putting undue emphasis on genetics rather than on constitutional ageing as the main driver for the presentations of his conditions.
9. Mr Lester asked Dr Journeaux questions about a radiology report of his feet showing ossicles and asked Dr Journeaux to accept that meant the condition (flat feet) was congenital and not hereditary. Dr Journeaux said categorically Mr Lester did not have a congenital condition, that the ossicles on the imaging often would indicate in some one of Mr Lester's age that at some point in the past there has been some trauma.
10. Mr Lester took Dr Journeaux to a medical journal article described as 'Interpretation of Exact CT Scans'[51] and asked Dr Journeaux to comment on its contents. Dr Journeaux provided an explanation of its contents as they related to the 'OS trigonum'. The relevance of the journal and the questions as to Mr Lester's conditions was not put to Dr Journeaux.
11. In re-examination of Dr Journeaux, Ms Rush asked Dr Journeaux:

(a) To confirm that if Mr Lester did not have flat feet at the time of his enlistment then that could have occurred because of ageing to which Dr Journeaux agreed.

(b) If feet could age in 7 months to have the condition of flat feet to which Dr Journeaux said no.

(c) If the flat feet condition is constitutional or congenital and wearing boots that could cause pain, if that was the case, once Mr Lester stopped wearing the boots would there be any ongoing contribution to the flat feet condition from wearing those boots to which Dr Journeaux did not believe so and give the short period of time Mr Lester was in the Army, the contribution would be short lived and transitory as an exacerbation rather than as an aggravation.

(d) When you accepted that the flat foot condition could be a predisposing factor for plantar fasciitis, were you saying that there was a link between the plantar fasciitis and the service, to which Dr Journeaux said no and any contribution at Kapooka or IET's would have caused maybe some foot strain symptoms rather than any contribution to any later conditions.

1. The High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [49] explained that the first task the Tribunal must undertake under the SRC Act (the DRCA is relevantly on the same terms) is to consider the facts to determine if the employee is suffering a 'disease' or an 'injury'.

Bilateral Knee Osteoarthritis, Bilateral Planter Fasciitis and Lumbar Spondylosis

1. The Tribunal is reasonably satisfied that Mr Lester has the conditions 'bilateral knee osteoarthritis, bilateral planter fasciitis and 'lumbar spondylosis', and such conditions are each a disease within the meaning of s 5B of the DRCA because of the uncontroversial medical evidence of Dr Journeaux, an orthopaedic surgeon.[52]
2. The parties in closing submissions agreed, and the Tribunal is reasonably satisfied, that the date of injury, pursuant to 7(4) of the DRCA, for the condition:

(a) 'bilateral knee osteoarthritis' is 2 January 2019, because that is the date which medical imaging first provided that diagnosis.[53]

(b) 'lumbar spondylosis' is 3 April 2023, because that is the date which medical imaging first provided that diagnosis.[54]

1. In respect of the date of injury (clinical onset) of Mr Lester's 'bilateral planter fasciitis':

(a) Mr Lester contends that it is June 1972 because of his medical records from his time in the Army disclose diagnosis and treatment for his feet consistent with the condition.

(b) Dr Journeaux in his expert report says it is 2 January 2019 but conceded during his oral evidence that it was likely to be around 2003.

1. The Tribunal is reasonably satisfied that the date of injury of Mr Lester's 'bilateral planter fasciitis' is 2003 because the clinical notes around that date disclose Mr Lester seeking treatment for the condition and Dr Journeaux on reviewing those clinical notes during his evidence conceded that around 2003 was an appropriate date for the injury and the Tribunal accepted Dr Journeaux's opinion.

1. On 28 February 2023, Dr Poukhov, general practitioner, provided a diagnostic assessment where he opined that the cause of Mr Lester's 'dislocation of the right patella' was 'carrying heavy equipment over long distances 80%' with a clinical onset of 1972_.[55]_
2. The Commission rejected Mr Lister's claim for 'internal derangement of the knee' by reason that it was unable to diagnose a knee condition and the service medical records state 'right knee clinically NAD although described as having recurrent dislocation right patella approximately every 3 months for many years. The term 'NAD' in the service record means no abnormality detected'.[56]
3. Dr Journeaux's evidence was that the persistent dislocation of the Mr Lester's patella had been subsumed into his 'bilateral knee osteoarthritis', and in any event, Dr Journeaux opined there was no evidence that it was caused by his Army service.
4. Dr Journeaux's opinions on Mr Lester's diagnosis of flat feet as a pre-existing condition of Mr Lester's Army Service and the impact of that service on the development of the condition of plantar fasciitis was thoroughly tested during cross-examination.
5. The Tribunal found Dr Journeaux to be a credible expert witness who politely dealt with questions and explained his reasoning in detail and in a manner that was readily understood. Dr Journeaux made appropriate concessions in respect to the date of injury of 'bilateral plantar fasciitis' when he was taken to evidence that was inconsistent with his report.
6. The Tribunal is reasonably satisfied that Mr Lester's condition of 'dislocation of the right patella' or as described in the First Reviewable Decision as 'internal derangement of the knee' is not a stand-alone condition and has been subsumed into Mr Lester's 'bilateral knee osteoarthritis' because:

(a) The Tribunal accepts the opinion of Dr Journeaux that Mr Lester's dislocation of his patella was not caused by his Army Service and the condition has been subsumed into his osteoarthritis.

(b) The Tribunal prefers Dr Journeaux's opinion over that of Dr Poukhov because Dr Journeaux is an appropriate specialist for the condition, his opinions were tested during his evidence before the Tribunal, and he was a credible and reliable witness.

(c) Dr Poukhov did not give evidence to the Tribunal and his diagnostic assessment did not provide the facts and assumptions upon which his opinion was based to be tested before the Tribunal.

1. As a consequence of the finding that the date of injury for Mr Lester's 'lumbar spondylosis' is 3 April 2023, the relevant test under the DRCA is s 5B(1) of the DRCA that defines 'disease' to mean either 'an ailment suffered by an employee' or 'an aggravation of such an ailment', that was 'contributed to, to a significant degree, by the employee's employment by the Commonwealth'.
2. The application of the term 'contributed to a significant degree by the employee's employment by the Commonwealth or a licensee' in s 5B of the SRC Act, in the same terms as s 5B of the DRCA, was considered by Katzmann J in Comcare v Power [2015] FCA 1502 at [93]- [94]:

There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of "significant" as "substantially more than material" makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be "more than trivial"; it had to be substantially more than trivial. The Tribunal did not recognise this, despite its reference to the definition. The error the Tribunal made is similar to the one made by the Tribunal in Sahu-Khan. In a valiant attempt to save the decision Ms Robinson drew attention to the fact that Dr Lewin had said "certainly more than trivial", but this was no more than an emphatic way of saying "more than trivial". It did not satisfy the statutory test and the Tribunal was mistaken in thinking otherwise.

Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention. The Tribunal did not engage with any of them. Indeed, it did not mention subs (2) at all. While the chapeau to the subsection states that those matters "may" (not "shall") be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that "may" means "shall": see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223 (Earl Cairns LC); North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41 at [209] (Nettle and Gordon JJ). In the absence of argument on this question I refrain from expressing a concluded view. Nevertheless, there is nothing in the Tribunal's reasons to indicate that it carried out the kind of evaluative exercise required by the statute.

1. In deciding whether Mr Lester's 'lumbar spondylosis' was contributed to a 'significant degree' (substantially more than material) by his service with the Army, the DRCA expressly provides by reference to s 5B(2) matters for the Tribunal to consider including the duration of his service; the nature of, and particular tasks involved in his service; any predisposition of the member to; any activities of the member not related to his service; and any other matters affecting the member's health.
2. The list is non-exhaustive and s 5B(2) specifically provides that the matters listed do 'not limit the matters that may be taken into account'.
3. The medical evidence supporting Mr Lester's contention is that of his general practitioner, Dr Poukhov as provided by him in a diagnostic assessment supporting Mr Lester's claim, where he opined that the cause of Mr Lester's lumbar spondylosis was the Fall and lifting heavy weights during recruit training (70%) and 'wear and tears over the years' (25%).[57]
4. The medical imaging of Mr Lester's lumbar spine shows 'bilateral L5 pars defects, that are longstanding...no recent or acute vertebral fracture seen'[58]. Mr Lester contends that the pars defects to his lumbar spine were caused by the Fall.[59]
5. Mr Lester cited, without clear explanation of its relevance, a decision of the New South Wales Workers Compensation Commission, Robins v Secretary, Department of Customer Service [2019] NSWWCC 374.[60]
6. Robins was a case about aggravation of a disease, namely 'lumbar spondylosis' by the work conditions the applicant in that case contended aggravated her existing underlying spondylolisthesis.
7. At the time of Mr Lester's Army Service, he did not have _'lumbar spondylosi_s' as an existing underlying condition. As I understand Mr Lester's contention, his pars defects shown on medical imaging of his lumbar spine were caused by the Fall and that led to the degeneration of his lumbar spine. Robins is of no assistance in respect to that contention.
8. Dr Journeaux's opinion was that the cause of Mr Lester's 'lumbar spondylosis' was 'constitutional' and the primarily the effect of ageing, noting that it was not diagnosed until 2023. Dr Journeaux discounted the possibility that the pars defects shown on the medical imaging were caused by the Fall and then caused the condition, rather than being developmental, because the trauma required to cause pars defects would have been visible on the medical imaging and was not.
9. The Tribunal prefers the evidence of the orthopaedic surgeon Dr Journeaux because he brought to bear his appropriate specialty in determining his detailed opinions as to the diagnostic assessment provided by Dr Poukhov that did not detail the facts and assumptions for his opinion. Additionally, Dr Poukhov did not give evidence at the hearing and so his opinion was not tested.
10. The opinion of Dr Journeaux was thoroughly tested during his evidence to the Tribunal. The Tribunal found him to be a credible expert witness who carefully dealt with questions and explained his reasoning in detail and in a manner that was readily understood. Dr Journeaux made appropriate concessions when he was taken to evidence that was inconsistent with his report.
11. The Tribunal is not reasonably satisfied that Mr Lester's Army service significantly contributed to Mr Lester's condition of 'lumbar spondylosis' because:

(a) The date of injury is 3 April 2023 and s 5B of the DRCA requires that Mr Lester's Army service must have 'contributed to, to a significant degree' to his 'lumbar spondylosis'.

(b) There is no evidence that Mr Lester was predisposed to the condition, was involved in activities not related to his Army service or had other health issues affecting the condition.

(c) Mr Lester's relatively short service in the Army does not weigh significantly to contributing to his condition of 'lumbar spondylosis'.

(d) Mr Lester's par defects to his lumbar spine were developmental and not caused by the Fall, because if they had been caused by the Fall, the Tribunal accepts Dr Journeaux's evidence that such trauma would have been visible on the medical imaging and it was not.

(e) The Tribunal accepts the evidence of Dr Journeaux as an orthopaedic surgeon and his opinion that Mr Lester's Army Service did not significantly contribute to his condition of 'lumbar spondylosis' and rather the cause was primarily the effect of ageing and constitutional reasons.

1. The Tribunal has made findings that that date of injury for Mr Lester's 'bilateral knee osteoarthritis' was 2 January 2019, and the condition 'internal derangement of the knee' has been subsumed into that injury.
2. As that date is after 13 April 2007, the test under s 5B of the DRCA is whether Mr Lester's Army Service 'contributed to a significant degree' to the condition as per Katzman J's reasoning in Power.
3. The medical evidence supporting Mr Lester's contention is that of his general practitioner, Dr Poukhov as provided by him in a diagnostic assessment that opined a diagnosis of osteoarthritis of knees with symptom onset of 1972 and a formal diagnosis in 2019.[61] The cause is said to be 70% carrying heavy equipment in the Army, 25% flat feet not being treated and 5% general wear.
4. Ms Rush in closing submissions, in addressing s 5B(2) of the DRCA, contended that Mr Lester's service of 7 months in 1971/1972, and a date of injury 46½ years later weighs against that service making a significant contribution to the condition.
5. The opinion of Dr Journeaux in his written expert report and in his oral evidence being asked to accept Mr Lester's evidence of what occurred during his Army Service was that there was no significant contribution to the condition. The opinions of Dr Rathu and Dr Doneley are consistent with that of Dr Journeaux.
6. The Tribunal prefers the evidence of Dr Journeaux for the reasons provided above.
7. The Tribunal is not reasonably satisfied that Mr Lester's Army service significantly contributed to Mr Lester's condition of 'bilateral plantar fasciitis' because:

(a) The date of injury is 3 April 2023 and s 5B of the DRCA requires that Mr Lester's Army service must have 'contributed to, to a significant degree' to his 'bilateral knee osteoarthritis'.

(b) There is no evidence that Mr Lester was predisposed to the condition, was involved in activities not related to his Army service or had other health issues affecting the condition.

(c) Mr Lester's relatively short service in the Army does not weigh significantly to contributing to his condition of ''bilateral knee osteoarthritis'.

(d) The Tribunal prefers the evidence of Dr Journeaux as an orthopaedic surgeon and his opinion that Mr Lester's Army Service did not significantly contribute to his condition of 'bilateral knee osteoarthritis'.

(e) Such opinion is consistent with the evidence of Dr Sathu and Doneley, also orthopaedic surgeons.

1. The Tribunal has made a finding that the date of injury for Mr Lester's 'bilateral plantar fasciitis' is 2003. As that date is prior to 13 April 2007, the test under 4(1) of the DRCA as it then was, is whether Mr Lester's Army service 'contributed to a material degree' to his injury.
2. As to the wording in s 4(1) 'contributed to a material degree', the Commission cited Comcare v Sahu-Khan [2007] FCA 15, per Finn J referring to the obiter remarks of the Full Court (French and Stone JJ) in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 (at [63]) agreeing that the word 'material' contained in the definition of 'disease' in s 4 imposes an 'evaluative threshold' below which a causal connection may be disregarded.
3. The Commission contended that 'while it is not necessary for the Applicant to demonstrate that his service caused the diseases or that it was the most important factor, the phrase 'in a material degree' has been held to exclude a 'de minimis contribution' or one which did not influence the course of events'.[62]
4. Mr Lester contends that the rigours of recruit training at 1 RTB, including prolonged weight bearing and running whilst wearing inappropriate footwear on hard surfaces, 'GP' boots (general purpose boots), and trauma to the plantar aspect of the foot contributed to his 'bilateral plantar fasciitis'.[63] Mr Lester relied on the 1983 minute from the Army's DGAHS that cautioned the use of GP boots for prolonged running (over 2 kilometres) as potentially causing damage to ankles, knees and back.
5. The medical evidence supporting Mr Lester's contention is that of his general practitioner, Dr Poukhov as provided by him in a diagnostic assessment that opined that the cause of Mr Lester's 'plantar fasciitis flat feet/sore feet' was 'ill fitted Army boots 30% lack of inserts for flat feet 70%' with a clinical onset of 1971_.[64]_
6. At the hearing, Mr Lester asked Dr Journeaux questions in respect to his flat feet, his Army service and his condition of plantar fasciitis. Dr Journeaux's opinion was that the cause of Mr Lester's 'bilateral plantar fasciitis' was 'constitutional' and the primarily the effect of ageing.
7. Dr Journeaux opined that Mr Lester had flat feet before commencing his Army service and the effects of his service on his flat feet would have at its highest exacerbated the symptoms of Mr Lester's feet disclosed in the medical notes whilst at 1 RTB. Any such exacerbation would have resolved after Mr Lester's service ended without causing plantar fasciitis in the opinion of Dr Journeaux.
8. Dr Journeaux was asked in his oral evidence to accept Mr Lester's evidence of what occurred during his Army Service and Dr Journeaux remained of the view that there was no contribution to the condition from Mr Lester's service.
9. The Tribunal prefers the evidence of Dr Journeaux for the reasons provided above.
10. The opinion of Dr Journeaux was thoroughly tested during his evidence to the Tribunal, particularly in respect of plantar fasciitis. As the Tribunal has found, Dr Journeaux was a credible expert witness who carefully dealt with questions and explained his reasoning in detail and in a manner that was readily understood. Dr Journeaux made appropriate concessions when he was taken to evidence that was inconsistent with his report about the date of injury for the condition.
11. The Tribunal is not reasonably satisfied that Mr Lester's Army service materially contributed to Mr Lester's condition of 'bilateral plantar fasciitis' because:

(a) The date of injury is 3 April 2023 and s 4(1) of the DRCA at that time required that Mr Lester's Army service must have 'contributed to in a material degree' to his 'lumbar spondylosis'.

(b) Mr Lester's relatively short service in the Army and the almost 51 years between that service and diagnosis did not materially weigh to contributing to his condition of 'lumbar spondylosis'.

(c) The evidence of Mr Lester's service does not fall squarely within the scope of the 1983 DGAHS guidance. In any event, that guidance did not provide authoritative evidence of causation between Mr Lester's service and his condition.

(d) The Tribunal accepts the evidence of Dr Journeaux as an orthopaedic surgeon and his opinion that Mr Lester's Army Service did not contribute to his condition of 'lumbar spondylosis'.

(a) Mr Lester's condition of 'internal derangement of the knee' has been subsumed into his condition of bilateral knee osteoarthritis' and is not a stand-alone compensable condition under the DRCA.

(b) Mr Lester's conditions of 'bilateral knee osteoarthritis' (date of injury 2 January 2019) and 'lumbar spondylosis' (date of injury 3 April 2023) were not significantly contributed to by Mr Lester's Army service pursuant to s 5B of the DRCA, and the First Reviewable Decision must be affirmed.

(c) Mr Lester's condition of 'bilateral plantar fasciitis' (date of injury 2003) was not materially contributed to by Mr Lester's Army service pursuant to s 4(1) of the DRCA as then enacted, and the Second Reviewable Decision must be affirmed.

1. The Tribunal affirms the decisions under review (2024/2865 and 2024/2056).

[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.

[5] Respondent's Statement of Facts, Issues and Contentions dated (R SFIC) at [3].

[7] Army system of medical classification, P being physical capacity (scored 0-8), U being upper limbs (scored 1, 2, 3, 7 and 8), L being locomotion (ability to march) (scored 1, 2, 3, 7 and 8), H being hearing (scored 2, 3, 7 and 8), EE being eyesight (scored 1-8), M being mental capacity (scored 2, 3, 7 and 8) and S being emotional stability (scored 2, 3, 6, 7 and 8)

[29] As interpreted by Dr Journeaux during oral evidence.

[31] As interpreted by Dr Journeaux during oral evidence.

[33] As interpreted by Dr Journeaux during oral evidence.

[35] As interpreted by Dr Journeaux during oral evidence.

[38] As interpreted by Dr Journeaux during oral evidence.

[53] Exhibit R2, p 143; Exhibit R1, p 52.