Boothman and Military Rehabilitation and Compensation Commission
[2005] AATA 725
•29 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 725
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/56
GENERAL ADMINISTRATIVE DIVISION ) Re ERNEST BOOTHMAN Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Allen, Member Date29 July 2005
PlacePerth
Decision The decision of the Tribunal is that:
(a) The reviewable decision made on 6 February 2002 is set aside. The matter is remitted to the respondent with a direction that the applicant is entitled to compensation for the September 1980 injury in accordance with the Safety, Rehabilitation and Compensation Act 1988 so that the respondent may determine the compensation payable to the applicant.
(b) The costs of the proceedings incurred by the applicant are to be paid by the respondent.
.....................(sgd M Allen)................
Member
CATCHWORDS
Compensation – Applicant suffered a fracture of the odontoid process in 1980 – finding that the fracture went on to partial bony and partial fibrous union – applicant became incapacitated for work in 2001 when it was revealed that the fracture was now displaced and un-united – consideration of whether the causal chain between the 1980 injury and the 2001 incapacity had been broken – finding that the incapacity and impairment was the result of the 1980 injury – reviewable decision set aside and matter remitted to respondent for determination of the applicant’s entitlements to compensation.
Administrative Appeals Tribunal Act 1975 s 37
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16 19, 67
Compensation (Commonwealth Government Employees) Act 1971 – ss 27, 32, 37, 39, 45, 46
Re Boothman and Military Rehabilitation and Compensation Commission [2004] AATA 1002
Commonwealth v Smith (1989) 18 ALD 224
Rothwell v Caverswall Stone Company Limited [1944] 2 All ER 350
Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510
McAuliffe v Comcare [2002] FCA 769
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
REASONS FOR DECISION
29 July 2005 Mr M J Allen, Member 1. On 6 February 2002 a decision was made on behalf of the respondent to affirm an earlier determination made on 17 September 2001 that the respondent was not liable to pay compensation to the applicant for the consequences of a neck injury incurred by the applicant in a motor vehicle accident in September 1980.
2. In September 2004 I delivered an interim decision (Re Boothman and Military Rehabilitation & Compensation Commission [2004] AATA 1002) on a number of preliminary issues that arose in the proceedings and the matter was subsequently re-listed for further submissions on the remaining issues to be determined, and which are the subject of these reasons for decision. The decision of September 2004 set out the background to the matter and these reasons for decision should be read in conjunction with that decision.
3. At the resumed hearing the applicant again represented himself and the respondent was again represented by Mr Lenczner of Counsel. At the earlier hearing the Tribunal had received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Act 1975 (T1 to T67), Exhibits A1 to A4 tendered by the applicant, and Exhibits R1 to R9 tendered by the respondent. When the hearing resumed an application was made by Mr Lenczner for the Tribunal to receive additional documentary material. The applicant did not object to that course of action and so I agreed to receive as further evidence exhibits A5 and A6, and R10 and R11. The resumed hearing was, otherwise, limited to the making of submissions by the parties.
Background and Statutory Provisions
4. As is set out in the earlier decision, in September 1980 the applicant suffered a neck injury in a motor vehicle accident. It was not until February 2001 that the applicant applied for compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) in respect of what was said to be the continuing consequences of the neck injury suffered in the 1980 accident.
5. The applicant would be entitled to compensation under the 1988 Act only if the injury, loss or damage suffered by him was compensable under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) as it was in force when the injury, loss or damage was suffered: s 124(1A) and s 124(2) of the 1988 Act.
6. Section 27(1) of the 1971 Act provides that:
“If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.”
7. For the reasons set out in my earlier decision I found that the journey upon which the applicant was engaged at the time of the accident is to be taken as constituting part of his employment by the Commonwealth for the purposes of s 32(1) of the 1971 Act. It is not in dispute that the injury suffered by the applicant in the 1980 accident (a fracture of the odontoid process) was an “injury” for the purposes of the 1971 Act and, accordingly, it will be “… a personal injury arising out of or in the course of the employment …” of the applicant by the Commonwealth for the purposes of s 27(1) of the 1971 Act, and the respondent will be, subject to the 1971 Act, ‘… liable to pay compensation in respect of that injury in accordance with [the 1971] Act.”
8. The issue addressed at the resumed hearing was whether there was a sufficient causal connection between the injury suffered in 1980 and the applicant’s current condition and his resulting impairment and incapacity for work. Mr Lenczner for the respondent addressed the issue in terms of s 14 and s 19 of the 1988 Act – in particular the requirement of s 14 that the injury “results in” incapacity for work and that of s 19 (which deals with the payment of periodic compensation) that there be an incapacity for work “… as a result of an injury …”. It was contended for the respondent that the applicant’s present incapacity has not resulted from the 1980 injury but was, rather, the result of intervening forces. The term “results in” was also employed in various provisions of the 1971 Act that defined the types and extent of compensation that an injured employee could receive – for example s 37 (medical expenses), s 39 (certain losses), s 45 (periodic payments where total incapacity for work), and s 46 (periodic payments where partial incapacity for work). Accordingly, for the purposes of determining the outstanding issue it matters not whether reference is made to the 1971 Act or the 1988 Act.
9. The respondent referred particularly to the decision of Commonwealth v Smith (1989) 18 ALD 224 and to a passage cited by Von Dousa J at 227 from Rothwell v Caverswall Stone Company Limited [1944] 2 All ER 350 at 365 per du Parcq LJ:
“In my opinion, the following propositions may be formulated upon the authorities as they stand: First, an existing incapacity “results from” the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause aggravated the effects of the original injury and prolonged the period of incapacity. …. If, however, the existing incapacity ought fairly be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, though, but for the original injury, there would have been no incapacity.”
10. In Commonwealth v Smith von Dousa J said at 226 that
“… it is clear law that it is not necessary for an incapacity to result solely from a compensable injury before compensation is payable as a consequence of that injury. It is sufficient if the injury contributes in a material sense to the incapacity. If a compensable injury constitutes one of a number of factors or events each of which combine as links in a chain of causation terminating in a single condition amounting to total incapacity, that incapacity will be fully compensable, the injury being a contributing cause in a material sense. The critical consideration is that a single condition arises causing incapacity even though the condition may have independent causes. Such a case is to be distinguished from one where independent causes produce independent consequences, distinct bodily conditions which amount to total incapacity only because they must be added together.” (References excluded).
11. In Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510 at 515 the Full Federal Court said that:
“It should be taken as “unarguably clear and generally accepted” … that an incapacity can result from more than one injury. It likewise should be taken as clear that the notion of causation imported by the clause does not limit the operative injury (or injuries) “to the immediate proximate cause of incapacity”. Whether the total incapacity results from an injury is a question of fact. This is no different from the application to a given case of the common law principles of causation in negligence cases; a “common sense” evaluation of the causal chain is required – that evaluation being made in light of the statutory formula itself.
The only additional general comments we consider it necessary to make are these. First, where the causal chain reveals multiple and sequential (or cumulative) injuries that are alleged to provide causes for an incapacity, before an earlier such injury can properly be said to be an injury for the purposes of clause 1(b) it must be able to be said that it remained an effective or operative cause of the incapacity. Secondly, as is well recognised, the sustaining of an injury and the onset of incapacity resulting from that injury need not, and commonly does not, occur simultaneously”. (References excluded)
12. In McAuliffe v Comcare [2002] FCA 769 at [11] Drummond J said that the principle to be applied in determining whether an injury “resulted in” incapacity for work or impairment was stated in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-464:
“The result of the cases is that each case where causation is an issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase “results from”, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death “results from” a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death “results from” the impugned work injury … is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honore identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter will do well to return … to the statutory formula and to ask the question whether the disputed incapacity or death “resulted from” the work injury which is impugned.”
The Evidence
13. After the motor vehicle accident on 18/19 September 1980 the applicant was admitted to hospital in Adelaide and then transferred to a military hospital in Sydney. X-rays conducted on 23 September 1980 and 17 October 1980 revealed normal and stable alignment of the cervical spine and no abnormalities were detected in the cervical spine (T20 and T23). On 21 October 1980 a “widening of odontoid atlas joint” was identified (T30) and at that time the applicant was referred to a specialist orthopaedic surgeon for review. Prior to 27 October 1980 the applicant wore a soft neck collar.
14. On 27 October 1980 a tomography revealed “a translucent line … extending across the base of the odontoid peg passing obliquely and upwards from the left side to the right, and this almost certainly represents a fracture. There is some associated concavity medially on the right side of the odontoid peg at the site of fracture. The position is otherwise normal.” (T33). The applicant thereafter wore a rigid neck brace and on 10 December 1980 a tomogram indicated “…that a fracture passing transversely through the base of the odontoid peg is not fully united as yet”. (T42). The applicant was returned to his unit on light duties on 16 December 1980.
15. The applicant was reviewed again in late January 1981 with a tomography report revealing “some bony bridging has occurred across the fracture site, with resultant blurring of the previously noted fracture lines, and this indicates that union is advancing. Union is not complete, however.” (T47).
16. It was shortly after the above events that the applicant absented himself from the Army without leave and was ultimately discharged after being posted as an “illegal absentee”.
17. In his oral evidence the applicant described an incident on New Year’s Eve, 1980, in which his neck had been wrenched in a fracas at an hotel, but said it had not caused any problems for him. He said that after the fracture had been diagnosed he had been kept immobile for about a month in hospital and was then able to do light duties around the barracks. He had never previously heard of an “odontoid peg” as a part of his vertebrae and did not fully understand the nature of his injury – but he had been told by the doctor that the fracture was uniting, would heal and he would lead a normal life. He presumed that this would be so. He said that after he went AWOL he returned to his parents’ home in Kalgoorlie and lived a fairly sedentary life for the first twelve months. During this time he was in some pain and discomfort from his neck but gradually the pain settled and he learned to put up with the stiffness in his neck – so that he was able to lead a fairly normal life over the years. In April 1981 the applicant was treated at the Kalgoorlie Hospital for a thigh injury suffered whilst surfing (R8). The applicant said that was the first time he had ever tried to surf.
18. The applicant said that after the 12 months referred to above he had become a Jehovah’s Witness and began working for the church for four years, in work that involved travelling door-to-door or driving a car or bus. That had been a fairly sedentary lifestyle. However, over the years he has done a variety of other jobs including tree pruning, bus driving, some part-time concreting and driving trucks, loaders and bobcats. For a time in about 1987 he had worked as a shearer for about two months and had worked for Hamersley Iron for about eight years from 1993 until 2001. He had also played a variety of sports including football, swimming, bike riding and surfing. He said that he was always conscious that his neck was not normal and he protected it to some extent – such as never “heading” a soccer ball. He had tried to keep himself fit throughout the years. He had never injured his neck whilst playing any of these sports, although he had experienced some neck stiffness when paddling a surf board. He had married in 1995 and had stopped all his physical activities – as a result of which his fitness and musculature had decreased.
19. The applicant also described several incidents in the 1980s when he had been involved in incidents of fighting or motor cycle accidents – in which he had suffered various minor injuries to parts of his body. He had not, to his knowledge, suffered any neck or head injuries – and had not experienced any neck pain or anything else to signify a neck injury.
20. The applicant said that whilst working driving large trucks for Hamersley Iron he had found that his neck was becoming stiff and sore at times. He thought this might be arthritis, but he attributed all other tension, headaches and neck aches to stress (his wife’s illness, his son’s major surgery and eventually a marriage break up). The stiffness and aching of the neck gradually became worse but he lost no time off work and he did not at that stage consult a doctor. He was reluctant to see doctors about a neck ache at that time because, when he commenced work for Hamersley Iron, he had not disclosed the 1980 neck fracture and he was worried that this would affect his ability to keep working for Hamersley Iron. He had thought that he was justified in not disclosing the existence of the previous neck fracture because of the statement made to him by the specialist in the Army that his neck would heal and he would lead a normal life.
21. In July 2001 his small son had inadvertently pulled his neck and he was aware of a “cracking” sensation and some pain. He took his first time off work thereafter and radiological investigations of his cervical spine revealed “… a fracture through the base of the odontoid peg with a 2mm cleft separating it from the body of C2. With flexion there is forward slip of C1 with respect to C2 of approximately 1cm. This corrects in neutral position. There is minimal retrolisthesis with extension. There is mild degenerative lipping at the margins of the C6/7 disc space.” He was referred to Dr Woodland.
Dr Woodland
22. In a report dated 22 September 2001 (T pp 99-101) Dr Woodland, who is a specialist orthopaedic spinal surgeon, referred to the history of the original injury, including the New Year’s Eve incident, and recorded that the applicant had “…embarked on quite heavy physical occupations”. He noted an increase in neck symptoms over the previous three years and that the applicant had been aware of “cracking and catching” on certain neck movements. He also referred to the incident in July 2001 involving the applicant’s son.
23. Dr Woodland reported that the tomogram of January 1981 suggested incomplete union of the fracture, which he thought was presumably undisplaced or minimally displaced at the time. He said that the fracture pattern was “…Type II, i.e. through the base of the odontoid process, which is associated with high incidence of non-union, even despite best possible treatment.” Dr Woodland concluded that the applicant had a “long standing definite ununited type II odontoid process fracture with at least 6mm movement/instability”. He thought that surgery was a possibility to protect repetitive spinal cord injury but surgery generally reduces cervical spine mobility by about fifty percent. He thought that the applicant would eventually have to consider surgery because he had “quite significant symptoms” and “quite considerable instability”.
24. In a report dated 8 September 1001 (A1), Dr Woodland reported on the risks involved in surgery and said the applicant would have “great difficulty working greater than 15 hours per week on a consistent basis.
25. In his oral evidence Dr Woodland said that fractures heal in one of two ways – by a bony bridging of the fracture site or by way of a fibrous union, which is scar tissue that fills in the broken ends of the fracture. Such a union is almost as strong as a bony union but is not quite as strong. Dr Woodland thought that the applicant’s injury in 1980/81 had healed reasonably well and was likely to have been strong enough to prevent further injury from the sorts of accidents that the applicant had experienced over the years, as well as standing up to activities such as surfing and heavy physical labour. The motor cycle accidents that the applicant had after 1980 were the sorts of events that would be most likely to cause significant neck problems if the applicant was to have a neck problem. He thought that if there had been a partial union of the fracture site then he would have expected some level of symptoms in the years that followed. Dr Woodland thought that a later re-fracture of the odontoid peg was a possibility. He found it hard to explain why the applicant would have developed increased symptoms from about 1995 onwards. That could have been caused by a single significant incident or it may have been a result of the loss of muscle condition in the neck and degenerative change giving rise to some symptoms. He found it hard to believe that the applicant could have been the subject of some type of significant incident involving a re-fracture without knowing it had occurred.
26. Dr Woodland said that if the fracture in 1980 had healed by way of a fibrous union then the applicant would have been more susceptible to the risk of a smaller, less major incident causing it to re-fracture. A fracture that has healed by way of a fibrous union is much more fragile and subject to symptomatology. A person in this position is at a significant risk of significant injury to his neck. Such a union, he would expect, would result in ongoing and worsening symptoms. He thought it was possible that, despite the sport and physical nature of the applicant’s work over the years, the applicant had simply not injured his neck again.
27. Dr Woodland said that the tests done in 2001 revealed only that the condition of the applicant’s neck had been in existence for more than six months but it was not possible to say how long ago the fracture had occurred.
28. Dr Woodland said that in his opinion the most likely scenario was that the initial fracture had never completely healed with a bony union. There is no doubt that the applicant does not have a bony union at the fracture site at the moment. The reports from 1980/81 indicated that the bony healing process was under way but it was not possible to be certain that it would have progressed to a full bony union or not. Dr Woodland said that he did not recall ever seeing a refracture of an odontoid peg that had been fully united, i.e. bony union. He had never seen a person with an incomplete healing go back to heavy work – but made the point that he had always advised them not to do that in any case. He thought that if there had been a complete bony union from the original fracture then any subsequent refracture would have caused significant pain. He had never seen a refracture of the same vertebrae.
29. Dr Woodland said that Type II fractures of the odontoid peg are notorious for not healing with a complete bony union and he thought at least fifty percent of cases of that type of injury did not heal in that way. Those statistics were supported by many studies around the world and his personal experience. If there had only been a fibrous union from the original fracture then it was quite possible that the applicant could have done something that could have damaged the fibrous tissue in the 1990s without being aware of it.
30. In a further report (to Hamersley Iron) given after his oral evidence and dated 17 May 2004, Dr Woodland said the applicant had significant symptoms in the context of not having to work regularly”, and would have “extreme difficulty finding employment in the open market …[and] working in any duties for which he is reasonably trained …. Without question, he would not be able to go back to any significant physical work for which he was previously trained. … [He] does have definite increased risk of further injury to his neck and more importantly, spinal cord injury with any further significant jolting to his neck. …I do feel it reasonable to say that he would never be able to ever resume work in or attend to any gainful employment or occupation for which he is reasonably fitted by education, training or experience”.
Dr Batalin
31. Dr Batalin is an orthopaedic surgeon and saw the applicant in April 2003 at the request of the respondent’s solicitors. In a report dated 11 April 2003 (R1) Dr Batalin referred extensively to the history of the matter and the applicant’s symptoms at that time. He believed that the applicant “…did sustain a moderate indirect neck injury … [in] September 1980. This probably consisted of an undisplaced fracture of the base of the odontoid process”. The prognosis from such an injury is variable and depends on union. “A significant proportion of this type of this type of injury goes on to bony union and some individuals may have resolution of symptoms but others may have lasting problems including slight restriction of movements and neck ache. On the other hand if there is fibrous union or significant initial instability the prognosis tends to be poor with a great incidence of neck pains, restriction of movements, headaches and susceptibility to further instability.” Injuries such as the incident on New Year’s Eve 1980 could have produced “… a significant aggravation of the neck. It could have resulted in converting a previously relatively stable fibrous union of C2 into an unstable fracture/subluxation or could actually result in refracturing of the previously united fracture. Any significant further neck injury could make the previously injured neck more unstable.”
32. Dr Batalin thought that on the currently available information there was “… an indication that the fracture of the odontoid peg … was the direct result of the accident [in] 1980 but follow up x-rays tend to suggest it was stabilising. It appears that there was subsequently either recurrence or significant aggravation … which went on to a greater degree of instability … with corresponding increase in symptoms.”
33. In a subsequent report dated 16 September 2003 (R2) Dr Batalin referred again to a number of incidents in which the applicant was involved and expressed an opinion that “… further significant direct neck injuries or, more likely, indirect head injuries can contribute to further instability or refracture of the partly healed injury … “. He said that incidents such as motorbike accidents that were not specifically related to the neck could result in “… further strain aggravation of the pre-existing neck injury making it more unstable”.
34. Dr Batalin said that “… progressive pain in the neck with restriction of movement is likely to suggest increasing pathology, probably increasing instability. The relevant question to ask is whether the level of activity at that stage was unmasking pre-existing instability which could remain relatively asymptomatic if there is no excessive stress or strain on his neck. For example patients with fibrous union of the odontoid peg could be quite comfortable if they maintained their necks in a neutral position or use a soft collar.” If there was fibrous union or an ununited fracture, subjecting the neck to strenuous labour or playing physical sports could “… make the underlying problem symptomatic and could even contribute to further instability. The latter would depend on the extent of the strain on the neck.”
35. Dr Batalin concluded that “… we either have to accept the fact that there has been original non-union of the fracture … which persisted and deteriorated or there has been re-injury. The former scenario is difficult to accept in view of the radiological report [in 1980] and this leads us to the likely conclusion that subsequently there has been re-injury of the neck with progressive instability and the increase in symptomology is likely to coincide with the increased problems of instability …”.
36. In his oral evidence Dr Batalin said that where there is a fracture of the odontoid peg the options are firstly, “… it will heal by bone in which case the pain and stiffness tends to settle, although it might not be completely so. The second option is that there may be partial healing or fibrous union. … Again this could be stable, in which case there may be very little in the way of symptoms. … The last option [is] that there may be non-union and instability. Only the last option is usually accompanied by symptoms which are lasting.”
37. Dr Batalin thought that if significant difficulties arose from the mid-1990s onwards that would be consistent with some further injury having happened at that time and he favoured that scenario. Up until then the fracture had either partly healed or healed by fibrous union and been asymptomatic and something happened around that time to make it symptomatic and was “a likely contributing factor to the new problem”.
38. Dr Batalin said that one of the problems with C1 fractures was that there may not be immediate symptoms, particularly with re-injury, and any symptoms may not be severe and may be intermittent – but as the re-injury occurs and instability progresses, the symptoms may increase, which may then lead to seeking medical attention.
39. Dr Batalin thought that the presence or absence of strong muscles or physical fitness was not normally a significant contributing factor to instability or re-injury but with the proviso that well developed musculature is more likely to protect the neck if there is an injury and hence may refracture.
40. Dr Batalin said that the evidence that was available from the 1980s tomograms did not show evidence of instability and if there was instability at that time (particularly by January 1981) it should have shown up.
41. Dr Batalin agreed that if there had only been minor union by bone in 1980/81 then it would take relatively little in the way of force to cause the problem. If it was full bony union it would require “severe force” to refracture but in the case of partial union – as Dr Batalin suspected was the case – it would have taken a lesser degree of force which may not have been noticed and could have been produced by a variety of activity. Such an incident is usually not a direct neck injury but is usually indirect where force is applied to the head. The logical presumption is that something has happened to cause some re-injury.
42. Dr Batalin agreed that if there had been a complete bony union in 1981 then in his experience the union is stronger at the fracture point than normal bone and so any subsequent refracture is most likely to be in an adjacent weaker spot – but it is very unusual for there to be a refracture of a full bony union. Rather, the most likely scenario was that there was an incomplete union and the subsequent ”re-instability or re-injury is at the same level” because an incomplete union is a weaker spot and the nature of force required to reinjure it may not be so extensive as to be noticeable. Dr Batalin said that in his experience probably 75% of such fractures go on to a fairly stable bony union although he was aware that some studies showed as many as 50% did not achieve that condition. Dr Batalin also agreed that a person who had a partly bony and partly fibrous union could have been quite stable and asymptomatic and this could have allowed the person to do fairly strenuous activity. He did not recall a case of such a union falling apart without further trauma or force but the degree of force might not have been apparent to the person, because in such a case there is a weakness. Dr Batalin also said that for a partial bony union all the various kinds of physical activities that the applicant was said to have engaged in over the years could have destabilised the union and the destabilising may have come from a single episode or from multiple trauma, none of which would have necessarily needed to be particularly severe. Dr Batalin said that in the case of the applicant he thought the most likely explanation was that there had been partial union that had gone on to not just instability but actual refracture because that is the only way one could get movement and displacement of the type that the applicant now experiences and that refracture may have occurred in circumstances where the applicant was not aware of it.
43. In a report prepared after he gave oral evidence (and dated 15 June 2005) (R10) Dr Batalin again noted that the tomograms from 1980/81 did not show instability or displacement, and because the applicant now has a displaced and ununited fracture, there must have been some further injury to the upper region of the neck and that it was likely that the applicant’s work or involvement in other incidents could have caused re-injury or refracture. Such re-injury may not be associated with neck symptoms that would be of sufficient magnitude to seek medical attention and he mentioned that Type 2 odontoid process fractures have a high incidence of delayed union, non-union or partial fibrous union that varies from “some 7% to almost 50%”. He believed that the applicant’s injury had healed progressively with no evidence of instability and that there was at least partial bony union. Had it not healed or had it been unstable there would have been significant residual symptoms and he would have been unlikely to have been able to undertake the type of work that he did.
Dr Home
44. Dr Home is an occupational physician to whom the respondent sent all the documentation in the proceedings (including transcripts of the oral evidence given earlier). He did not examine the applicant. In a report dated 16 June 2005 (R11) Dr Home expressed the view that the incident on New Year’s Eve 1980 may have reduced the success of progress to satisfactory bony union and that “inadequate mobilisation and severe forces across the neck may have led to some breakdown of the bony union and may also have slowed or prevented the progress to full and complete bony union.” He thought that it was most unlikely that the applicant would have coped with the work and other physical activities that he engaged in if the fracture had not united in any sense in 1980 and he would have been able to do these things only if there had been at least partial bony union. Dr Home thought that “… it was most probable that [the applicant] suffered further trauma to the neck around the mid-1990s, leading on to refracture of the C2 process, which did not subsequently reunite. From that time forward there were progressive symptoms related to instability … “.
Consideration
45. I am satisfied that the fracture suffered by the applicant in 1980 did not go on to a complete bony union and that it progressed to a partial bony union and a partial fibrous union. I also find that resulting union was stable and quite strong, because otherwise it would not have been possible for the applicant to undertake the heavy physical work and engage in the other activities that he did over the years. I generally accept the applicant’s evidence that he was able to lead a relatively normal life and the neck condition clearly did not prevent (until the mid to late 1990s) him from undertaking heavy physical work and other strenuous activities. I do accept the applicant’s evidence, however, that he was conscious of his neck at all times and that from time to time he did suffer minor inconvenience (stiffness) from various activities.
46. However, it is also quite clear from both the applicant’s evidence and that of the medical practitioners that something happened during the mid to late 1990s that brought to the surface symptoms of neck pain, stiffness and headaches. We do not know what caused that to occur. It is not possible to conclude what was the nature of the event or events that caused this to happen but the result was that the previously partially united odontoid process became ununited and displaced. I accept the evidence of Dr Batalin and Dr Woodland that, because the original union had probably not been a full bony one, that the degree of force or stress required to cause that union to come apart could have been relatively minor and might not have been noticed by the applicant. It is not possible to determine conclusively whether the cause of the union coming apart was a single event or trauma or whether it was a combination of many minor traumas over an extended period of time. I do, however, accept Dr Woodland’s evidence that the radiological tests done in July 2001 revealed that the condition of the applicant’s neck had been in existence for more than 6 months and, on balance, I find that the incident involving the applicant’s son inadvertently pulling his neck, which occurred in July 2001, was not a single precipitating event.
47. I accept the applicant’s evidence that he suffered no significant injury over the years since 1980 that might have indicated to him that he had re-injured his neck. Rather, on balance, I find that it was a series of minor events that were not significant in themselves that put stress on the applicant’s neck and resulted in the partially united fracture coming apart. In my opinion, on the balance of probabilities, the original partly united fracture point simply came apart rather than being “refractured” in the sense that there was a new fracture of an otherwise sound and strong union.
48. The issue that I must determine is whether the incapacity of the applicant that commenced in July 2001 when his present condition was revealed is the result of the 1980 injury or is the result of some new intervening force that has, in the words of Drummond J in McAuliffe (supra) at [11] caused the chain of causation to become so attenuated that it can be said to have been snapped.
49. It is true that the injury of 1980 did not totally incapacitate the applicant in the years that followed. However, I accept the evidence of Dr Woodland that, had it been known that the original fracture had gone on to only a partial bony union and partially fibrous union, he would have advised a person in the applicant’s position to not undertake heavy physical labour. The fact that the applicant led a full and physical life prior to the mid 1990s is, in my opinion, more a reflection of his nature and preparedness to put up with the minor inconveniences that I accept he experienced over the years. It follows, in my opinion, that the applicant was not a person who was merely predisposed to subsequent injury that would cause incapacity. Because the fracture had united only partially there was always a significant prospect that further, relatively minor, events could aggravate or damage that partial union. In my opinion it can properly be said that the 1980 fracture was an operative and effective cause of the incapacity that arose in 2001 because that original fracture contributed materially to the condition of his neck in the mid-1990s and the aggravation or further injury that occurred at that time. In the words of the full Federal Court in Ilsley (supra) at ALR 515 the causes of the applicant’s incapacity in 2001 were latent from 1981 and the effect of the 1980 injury was only realised when the partially united fracture point became un-united at some time during the late 1980s with a progressive increase in instability and symptoms that reached a point in 2001 when the applicant sought medical attention.
50. For the above reasons I do not accept the contention made on behalf of the respondent that the chain of causation between the 1980 fracture and the 2001 incapacity was broken because of the passage of time between the two events, the considerable physical stress to which the applicant chose to subject his neck over the years, and the failure of the applicant to seek proper medical attention for his neck after he left the Army. Rather, I consider that the evaluation of the causal chain set out above is a common sense consideration of the evidence in the case. I am satisfied that the applicant’s present incapacity for work is due to a single condition and that it can be said to be the result of the 1980 injury suffered by him. That injury was a contributing cause in a material sense and remained an effective or operative cause of the incapacity. It had not ceased to have effect and remained a continuing, although contributory, cause of the incapacity.
51. Accordingly, the reviewable decision made on 6 February 2002 that the respondent is not liable to pay compensation to the applicant is set aside. The matter is remitted to the respondent with a direction that the applicant is entitled to compensation in respect of his neck condition so that the respondent may determine the types and amounts of compensation to which the applicant is entitled. Because this decision is of the type falling within s 67 (9) of the 1988 Act I also order that the costs of the proceedings incurred by the applicant shall be paid by the respondent.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: ...........................(sgd N Wee)....................................
AssociateDate/s of Hearing 16 - 17 March 2004 and 1 July 2005
Date of Decision 29 July 2005
Counsel for the Applicant In person
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Ingrid McCormick
Australian Government Solicitor
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