Callaghan and Comcare
[2006] AATA 764
•7 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 764
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/221 ) A2005/123
) A2005/171
GENERAL ADMINISTRATIVE DIVISION ) Re NEVILLE CALLAGHAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal
J.W. Constance, Senior Member Dr M.D. Miller AO, Member Date7 September 2006
Place Canberra
Decision 1. In application A2004/221 the decision of Comcare made 23 July 2004 denying liability to compensate Mr Callaghan for an injury claimed to have occurred on or about 11 March 2004 is affirmed.
2. In application A2005/123 the decision of Comcare made 16 May 2005 denying liability to compensate Mr Callaghan for an injury claimed to have occurred on 29 January 2004 is affirmed.
3. In application A2005/171 the decision of Comcare made 20 June 2005 denying liability to compensate Mr Callaghan for the cost of treatment incurred in relation to a claimed injury is affirmed.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Incidents in work gym claimed to cause compensable injuries – Whether injuries occurred as claimed – Whether Tribunal satisfied of facts on balance of probabilities – Tribunal not satisfied of facts to requisite degree – Inconsistencies in evidence before Tribunal.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14
McDonald v Director-General of Social Security (1984) 1 FCR 354
REASONS FOR DECISION
7 September 2006
J.W. Constance, Senior Member
Dr M.D. Miller AO, Member INTRODUCTION
1. Mr Callaghan has worked for the ACT Government bus service, ACTION, since 2002. In 2003 he was injured at work and as part of his treatment for the injuries he attended regular exercise classes in ACTION’s gym. Mr Callaghan claims that on two separate occasions he was injured whilst attending these classes.
2. There are three applications before us:
· A2004/221 – to review a decision refusing to compensate Mr Callaghan in respect of an injury he claimed to have suffered on 10 March 2004 whilst doing a lunge exercise as part of a rehabilitation plan for the previous injury;
· A2005/123 – to review a decision refusing to compensate Mr Callaghan in respect of an injury he claimed to have suffered on 29 January 2004 whilst using an exercise bike as part of the rehabilitation plan; and
· A2005/117 – to review a decision refusing to compensate Mr Callaghan for medical expenses claimed to arise from one or both of the above alleged injuries.
3. For the reasons which follow we have decided that each of the decisions subject to review will be affirmed.
LEGISLATIVE FRAMEWORK
4. Subsection 14(1) of the Act provides:
Compensation for injuries
Subject to this Part, Comcare is liable to pay compensation in
accordance with this Act in respect of an injury suffered by an
employee if the injury results in death, incapacity for work, or
impairment.
5. “Injury” is relevantly defined in section 4 to mean:
“(b) an injury (other than a disease) suffered by an employee,
being a physical…… injury arising out of , or in the course of, the
employee’s employment; or
(c) an aggravation of a physical……injury…… suffered by an
employee ….. being an aggravation that arose out of, or in the
course of, that employment”.
ISSUES FOR DETERMINATION
6. In each of applications A2004/221 and A2005/123 the issue is whether Mr Callaghan suffered an injury in the circumstances claimed.
7. Comcare concedes that whilst Mr Callaghan was using an exercise bike on 29 January 2004 the seat suddenly slipped causing his body to drop downwards. Comcare also concedes that Mr Callaghan was using the bike as part of a rehabilitative program he was undertaking following an accident at work in September 2003. We are satisfied that these are proper concessions. Comcare does not concede Mr Callaghan suffered an injury on this occasion.
8. Comcare also concedes that Mr Callaghan attended a gym class on 10 March 2004 at which he did some lunging exercises but does not concede that he suffered an injury on this or any other day about this time. Although Mr Callaghan initially claimed he was injured on 10 March 2004 his Counsel indicated at the outset of the hearing that the evidence would indicate the injury probably occurred on 11 March 2004.
9. The parties agree that the decision on A2005/171 depends upon whether or not there is a determination that one or other of the claimed injuries occurred.
FACTS
10. Mr Callaghan is 51 years old. He is a qualified mechanic.
11. In 1995 Mr Callaghan was involved in a motor vehicle accident in which he injured his lower back. Mr Callaghan described the effects of this injury as being pain in his lower back, right buttock and bladder and says those effects lasted for two and a half years. He also says that when he commenced working for ACTION in June 2002 he no longer had any problems arising from the accident. From the time he commenced with ACTION Mr Callaghan worked on a series of short-term contracts; he did not become a permanent employee.
12. In September 2003 Mr Callaghan injured his right shoulder and the right side of his back in an accident at work. He was off work for about two weeks and then returned on restricted hours on light duties. Comcare accepted liability for this injury.
13. As part of his rehabilitation following the September 2003 injury, Mr Callaghan received physiotherapy and attended a gym class two times a week. The class was conducted in ACTION’s own gym by Mr Ryan Huxley, a representative of Fit Happens. Fit Happens conducted the classes by arrangement with ACTION.
14. On 29 January 2004 Mr Callaghan attended a gym session and was using an exercise bike as part of his warm-up. He says that half-way through his warm-up the seat suddenly slipped downward and “just jammed me into the bottom of the pushbike.” [1] Mr Callaghan described his immediate physical sensation as:
“Just a tingling. I’ve seen stars first up and then the young bloke rushed across and I stood up off the pushbike and tingling just down - tingling on the back of my legs and that was it.” [2]
[1] Transcript of Proceedings, 2 August 2006, p. 12.
[2] Transcript of Proceedings, 2 August 2006, p. 12.
Mr Callaghan identified the person who rushed to him as Mr Huxley and says that Mr Huxley told him to sit down for about twenty minutes. Mr Callaghan also reported the incident to his supervisor, Mr Darrell Shepherd.
15. Mr Huxley gave evidence that he recalls the incident of the seat slipping but does not recall it in any further detail. He said that Mr Callaghan’s pattern of attending the gym after this incident did not change.
16. In his claim form[3] Mr Callaghan nominated Mr Anthony Douch as a witness to the event. In a written statement made 13 March 2006 [4] Mr Douch said that he saw the seat on the bike being ridden by Mr Callaghan slip. He said that Mr Callaghan got off the bike, commented that it had hurt his back and then continued the warm-up exercise on the bike.
[3] Ex. A1, T4 in matter A2005/123.
[4] Ex. A3.
17. There is conflicting evidence as to the type of exercise bike Mr Callaghan was using at the time. Comcare tendered as an exhibit an exercise bike of the type said to have been available for use by Mr Callaghan in March 2004. This bike has a well-padded seat and has a rubber collar around the bar supporting the seat such that it would act as a substantial cushion in the event of the seat suddenly slipping. From our observations, we are not satisfied that Mr Callaghan could have suffered the injuries described had he been using such a bike at the time.
18. Mr Callaghan denied that he was using a bike of the type in evidence. He says he was using an older type of bike which did not have the same amount of padding on the seat and did not have the rubber cushioning device. Mr Huxley saw the bike which was tendered in evidence. He said that this was the type of bike available for use by participants in classes he conducted in March 2004. He said that when he commenced conducting the classes sometime in 2003 he and Mr Kimpton, the owner of Fit Happens, inspected the equipment in the ACTION gym. At that time they determined not to use the type of bike described by Mr Callaghan. Those were an older style of bike which had a rotating wheel. They were considered unsafe due to the possibility of people injuring their fingers in the wheel. Mr Huxley said that the bike in evidence was the type of bike used in gym classes he conducted for ACTION employees and that the older style bikes were definitely not used in his classes.[5]
[5] Transcript of Proceedings, 4 August 2006 pp 11-12.
19. Ms Lynne Campbell gave evidence on behalf of Mr Callaghan. Ms Campbell and Mr Callaghan were in a de-facto or husband/wife relationship from 1986 to 1993. The relationship ended in 1993 and from that time Mr Callaghan has rented a room in Ms Campbell’s home.
20. Ms Campbell said that on the evening of 29 January 2004 Mr Callaghan told her of the incident on the exercise bike and that he had jarred his back and was uncomfortable and experiencing some tingling in his back. She said that a couple of days later she noticed severe bruising on Mr Callaghan’s inner thighs and that it continued up into his groin.
21. Mr Callaghan said in evidence that following the bike incident he would experience pain whilst walking if he twisted his torso. He described this pain as a “niggle”.[6]
[6] Transcript of Proceedings, 2 August 2006, p. 22.
22. Mr Callaghan had an appointment for a medical examination with Dr Warfe on 13 February 2004 for the purposes of his application for permanent employment with ACTION. On 2 February 2004 Mr Callaghan consulted his general practitioner, Dr Pryor and asked him for a certificate that he was not yet fit to undergo this examination.[7] On the same day Dr Pryor wrote to ACTION advising that he considered Mr Callaghan was unfit to undergo the examination as he was recovering “from his work related injury and is on graduated return to work.” [8] There is no mention of Mr Callaghan reporting the injury of 29 January 2004 to Dr Pryor, either in his clinical note of the consultation nor in his letter of 2 February 2004.
[7] Ex. R14.
[8] Ex. A1, T30 in matter A2005/171.
23. Mr Callaghan consulted Dr Pryor again on 4 February 2004. He did not tell Dr Pryor of the injury he suffered on the exercise bike the previous week. Dr Pryor’s clinical note of that visit is:
“Has been going well with work gym. For slow progression to more duties. Review 4w.” [9]
[9] Ex. R14
24. Mr Callaghan continued to attend the gym classes as part of his rehabilitation although he says he did not participate in all the exercises because some aggravated his back condition. He says that during a class on 11 March 2004 he bent down to do a “half lunge”, his knee gave way and he felt a tearing sensation in his back. He says he felt a burning sensation in the right side of his lower back, right buttock and the lower part of the top of his right leg.[10] Mr Callaghan also says that immediately following this incident the instructor, Mr Huxley, spoke to Mr Callaghan concerning the incident and asked him to be seated until the class finished. Mr Callaghan then returned to the workshop.
[10] Transcript of Proceedings, 2 August 2006, p. 15.
25. Mr Huxley prepared a report of a gym session which he says Mr Callaghan attended on 10 March 2004,[11] the day before Mr Callaghan now alleges the incident happened. The document is not dated but was prepared in response to an enquiry on behalf of ACTION following Mr Callaghan’s report of the incident and within some weeks of 10 March 2004. In part Mr Huxley reported that:
“I must stress that after completion of this session Neville was moving at a level better than when he arrived and showed no signs of discomfort or injury. I must also stress that he did not call me to report any injury or discomfort until the morning of Tuesday the 16th of March. In our conversation on Tuesday Neville reported severe pain and swelling in his hip with very restricted movement.”
[11] Ex. A1, T8 in matter A2005/123.
Mr Huxley confirmed the accuracy of this report when he gave evidence.
26. Although Mr Huxley’s report relates to the class on 10 March 2004 and not 11 March 2004, Mr Huxley was clear in his evidence that Mr Callaghan did not report any injury to him prior to the following Tuesday (16 March 2004) and he did not observe any incident such as Mr Callaghan has described. Mr Huxley denied having told Mr Callaghan to rest during exercises involving lunges.[12]
[12] Transcript of proceedings, 3 August 2006, p. 53.
27. On his claim form dated 21 March 2004 [13] Mr Callaghan nominated Mr David Bradley, a fellow ACTION employee as a witness to this incident. Mr Bradley made a written statement on 21 April 2004 [14] in which he stated that he recalled being at a gym class with Mr Callaghan on either 10 or 11 March 2004 and that at no time did Mr Callaghan complain of being injured. Mr Bradley also stated:
At the end of the session we walked out the door together and headed back to the workshop. On the way back we talked about how good it feels after the gym – being able to move freely and straighten up (walk freely – basically) and we both agreed about that. We both agreed we feel good after leaving the gym.
From that time I didn’t see Neville until about the Tuesday 16 March or Wednesday 17 March – just after the Public holiday on 15 March. I’m not sure of the date, but Neville and I spoke over at the workshop and he asked me how I felt after the previous session. I said I felt pretty good and he said that he felt a bit sore in the hip.
[13] Ex. A1, T4 in matter A2005/221.
[14] Ex. A1, T9 in matter A2005/221.
Mr Bradley gave evidence and confirmed his statement. He said that he may not have walked all the way back to the workshop with Mr Callaghan after the gym session.
28. Mr Callaghan says that as he walked back to the workshop he was experiencing pain in his lower back and in his upper right leg. He says that on the way he saw two fellow employees, Mr Peter Turner and Mr Tom McCormack and that Mr Turner commented upon the manner in which he was walking. Mr Callaghan says that he replied “I feel like I have been hit by a grinder.” [15] To the best of Mr Callaghan’s recollection he continued to work for the rest of the day although he “took it quite easy.” [16]
[15] Transcript of proceedings, 2 August 2006, p. 16.
[16] Transcript of proceedings, 2 August 2006, p. 16.
29. Mr Turner gave evidence and confirmed a written statement he made on 10 February 2006 for the purposes of these applications. He recalls being outside the workshop with Mr McCormack on a morning on or around 11 March 2004 and seeing Mr Callaghan walking across the carpark. He says he may have commented on Mr Callaghan’s manner of walking to Mr McCormack. He described what he saw as follows:
“Neville [Mr Callaghan] was trying to walk. He had his legs apart and was holding onto the side of a car to help him get up onto the kerb.” [17]
[17] Ex. A5.
Mr Turner also said that Mr Callaghan complained to him of having injured his back and that it was caused by the lunges.[18]
[18] Ex. A1, T18 in matter A2005/221.
30. Mr McCormack also gave evidence. He said that he recalled that in early March 2004 was standing outside the workshop with Mr Turner when he saw Mr Callaghan walking across the carpark. He recalls Mr Turner commenting on the manner in which Mr Callaghan was walking and that Mr Callaghan said that he had hurt his back. He said he saw Mr Callaghan “holding his back and, sort of, muttering to himself.” [19] In a statement made some weeks after the incident [20] Mr McCormack stated that Mr Callaghan said at the time he thought he had damaged his hip doing lunges during the exercise classes, or words to that effect.
[19] Transcript of proceedings, 3 August 2006, p. 38.
[20] Ex. A1, T17 in matter A2005/221.
31. Mr Callaghan did not work the following four days as Friday was a rostered day off and Monday was a Public Holiday. He said his condition got so bad that he was confined to bed. Mr Callaghan described his condition during the four days following the incident as:
“I couldn’t move. I didn’t want to get out of bed, and I couldn’t move. I felt that sick.” [21]
[21] Transcript of proceedings, 2 August 2006, p. 72.
He said he telephoned his Rehabilitation Officer, Ms Wendy Hill, and informed her of his situation.
32. In a letter of 8 June 2004 [22] in support of Mr Callaghan’s claim, Ms Campbell stated that on “10 March 2004 Wednesday” Mr Callaghan told her of discomfort in his groin, back and knee as a result of doing lunges at the gym. She also stated that by the Friday morning he could not get out of bed and that he remained in bed for four days. Ms Campbell described Mr Callaghan on the evening of Tuesday 16 March 2004 as being “in so much pain he was nearly incoherent.”
[22] Ex. A1, T16 in matter A2005/221.
33. Mr Callaghan returned to work on Tuesday 15 March 2004 although he was not feeling well. His condition worsened and he sought the assistance of Mr Doug Crampton, a fellow employee who on occasions gave massages. Mr Callaghan said he got onto the massage table but he was in so much pain that Mr Crampton literally could not touch him. Mr Crampton then went to try to locate one of Mr Callaghan’s superiors to inform him that Mr Callaghan was ill. Mr Callaghan waited for a short time but as Mr Crampton did not return he left his workplace and drove home. He said that the pain he was suffering was so severe that he was not thinking sufficiently clearly to accept offers to drive him home or to seek medical or hospital treatment on his way. He said that as he was driving home he was in so much pain that he had to stop the car on one occasion. Once home, he says he took some morphine tablets he had in his possession to relieve the pain. [23] Mr Callaghan has not returned to work since 16 March 2004.
[23] Transcript of proceedings, 2 August 2006, p. 70.
34. Mr Crampton gave evidence and confirmed his statement made 7 February 2006.[24] He said that on or about 11 March 2004 he saw Mr Callaghan struggle up the stairs at the workshop. Mr Callaghan told him he had injured his back and asked for help. Mr Crampton said he gave Mr Callaghan a light massage and then went to tell one of the superiors that Mr Callaghan had a serious injury. When Mr Crampton returned Mr Callaghan had gone.
[24] Ex. A6.
35. On the evening of 16 March 2004 Ms Campbell called Dr Pryor’s surgery and requested Dr Pryor make a home visit to see Mr Callaghan. Dr Rasaratnam attended. Mr Callaghan says that he was experiencing such pain that Dr Rasaratnam stood back from him and without touching him provided a prescription for pain relief. Ms Campbell had the prescription filled for him.
36. Dr Rasaratnam provided a medical certificate dated 19 March 2004 in which he certified that he had examined Mr Callaghan on 16 March 2004 and that he was unfit for work until 23 March 2004 as a result of an injury caused by lifting heavy drums. [25] The injury of September 2003 was recorded by Dr Pryor as involving the lifting of brake drums.[26] Mr Callaghan or someone on his behalf wrote on this certificate before it was submitted to his employer:
“NOTE (This medical certificate has incorrect cause of accident this was a home visit pm 16 March 04. Dr did not ask how problem occurred.” [27]
[25] Ex. A1, T5 in matter A2005/123.
[26] Ex. A1, T9 in matter A2005/171.
[27] Ex. A1, T5 in matter A2005/123, p. 7.
Mr Callaghan said his condition was such that at the time of the visit he could not talk to Dr Rasaratnam and that Ms Campbell spoke to him. Ms Campbell did not say that she told Dr Rasaratnam that Mr Callaghan claimed to have injured himself doing lunges at the gym the previous Thursday. The entry in the clinical notes relating to Dr Rasaratnam’s visit does not refer to an injury at the gym. [28]
[28] Ex. R14.
37. Mr Callaghan had an appointment to see Dr Pryor on 17 March 2004 but says he did not attend because he was not well enough to do so. He next sought medical treatment on 24 March 2004 when he attended Dr Pryor. Dr Pryor’s note of that attendance includes:
“injured himself slightly during exercise classes doing lunges – back leg slipped. 3d later over WE suffered severe R groin pain…..” [29]
[29] Ex. R14.
COMCARE’S CONTENTIONS AS TO UNRELIABILITY OF MR CALLAGHAN’S EVIDENCE
38. Counsel for Comcare has submitted that there are many instances of conflict between the evidence of Mr Callaghan and the evidence given by other witnesses. We will deal with this issue in general terms later in these reasons. However we will now refer to a number of specific instances on which Comcare relies and in respect of which we are able to make findings.
Mr Callaghan was at risk of failing to obtain a permanent position with ACTION and sought to secure an income by means of compensation payments
39. In 2004 Mr Darrell Shepherd was the Manager of the ACTION workshop in Tuggeranong. He continues to hold that position. On the basis of his evidence we are satisfied that in 2004 there were only two or three contract positions in the workshop (of which Mr Callaghan held one) and there was an ongoing process to replace these contract positions with permanent positions. Some time prior to 10 March 2004 Mr Callaghan applied for a permanent position and Mr Shepherd was part of the selection panel for that position. Mr Callaghan was found to be suitable, subject to a satisfactory medical report and police check.
40. Mr Shepherd gave evidence, which we accept, that he requested Mr Callaghan on a number of occasions to complete the documentation to permit ACTION to obtain a police character check but that Mr Callaghan declined to do so, insisting that he had already supplied a copy of a police check. Searches by ACTION have failed to locate these documents and there is no record they were received.[30] We are satisfied Mr Callaghan has a police record, on the basis of which ACTION may have refused to employ him in the permanent position. [31] We are also satisfied on the basis of the evidence of Mr Shepherd that Mr Callaghan thought there was a substantial risk that he would cease to be employed by ACTION if he failed to obtain a permanent position. Comcare argues this possibility was motivation for Mr Callaghan to seek to obtain an ongoing income from compensation payments for the alleged aggravation of his back condition. Mr Callaghan does have income protection insurance but this is for a limited period.[32]
Mr Callaghan had suffered previous injuries which may account for the symptoms he attributes to the incidents in the ACTION gym
[30] Ex. R2.
[31] Ex. R4 and oral evidence of Mr Callaghan (Transcript of proceedings, 2 August 2006, pp 43-45).
[32] Ex. A4.
41. Entries in Dr Pryor’s clinical notes show that in 1991 Mr Callaghan was experiencing pain in his lower back and hips and numbness down the backs of his legs.[33] In May 1996 Dr Bate, General Practitioner, reported that “the symptoms relating to his [Mr Callaghan’s] lower back and right lower limb pain date from 6.10.95 when he was stretching in bed and experienced severe low back pain.” [34]
[33] Ex. R14.
[34] Ex. R7.
42. In 1995 Mr Callaghan was involved in a car accident. In documents filed in the ACT Supreme Court in his claim for damages arising from this accident Mr Callaghan claimed that in 1996 he was suffering “continuing low back pain”, “continuing right buttock pain, right calf pain and numbness in the leg” and “continuing pain in the right hip”. [35]
[35] Ex. R8.
43. We are satisfied that in 1996 Mr Callaghan was suffering thye symptoms referred to in the preceding two paragraphs.
Mr Callaghan has been inconsistent in completing various forms relating to his medical conditions
44. On 13 February 2004 Mr Callaghan completed an ACTION Health Questionnaire Form in relation to his application for permanent employment.[36] He answered “yes” to a question as to whether he had ever been affected by back pain/back injury/sciatica. Dr Warfe, who conducted the medical assessment, wrote on the form “currently w/c for thoracic strain at ACTION.” Comcare argued that this indicated Mr Callaghan had not informed Dr Warfe of his earlier episodes of back pain. In the absence of evidence from Dr Warfe we are not prepared to make such a finding.
[36] Ex. A2.
45. In September 2004, with the assistance of Ms Campbell, Mr Callaghan completed a claim form addressed to his income protection insurer.[37] He described the injury which he said occurred in the gym on 11 March 2004 as “strain R hip muscles, rupture R medial calf muscle, lumbar disc injury.” He described the current symptoms as “decreased mobility, pain & discomfort in the right groin, hip and lower back, bladder disfunction, numbness R foot.” To the question “have you ever suffered from this condition before?” he answered “no”. In giving evidence Mr Callaghan could not explain why this answer was given.
[37] Ex. R10.
46. The claim form in matter A2005/171 (dated 7/9/03) was completed by Mr Callaghan in relation to the dorsal spine strain injury he suffered on 2 September 2003. Comcare has argued that Mr Callaghan failed to disclose his previous back complaints in answer to a question as to whether he had ever suffered a similar injury or illness before. We are not prepared to make any adverse inference from this failure as it is not clear whether an injury causing pain between the shoulder blades should be regarded as “similar to” an injury to the lower back.
47. On 21 March 2004 Mr Callaghan (again with Ms Campbell’s assistance) completed a claim form in respect of the 10 March 2004 incident.[38] He claimed an injury to the right lower back involving back pain. He did not disclose his earlier back conditions in answer to a question as to whether he had ever had a similar symptom or injury before. Mr Callaghan also failed to disclose his previous back problems (other that the September 2003 injury) when he completed a claim form in relation to the exercise bike incident.[39] Mr Callaghan was unable to explain these omissions.
[38] Ex. A1, T4 in matter A2005/221.
[39] Ex. A1, T19 in matter A2005/123.
Mr Callaghan’s evidence as to the medication he is taking is unreliable
48. Mr Callaghan was quite specific that he takes at least one of each of his prescribed medications daily and in cross-examination was given the opportunity to consider his answers carefully. He said that he took the medication for pain relief and had been doing so each day since March 2004 and intermittently before that time.[40] He identified his current medication as Baclofen, Duplon, Valium and Panadol Forte.
[40] Transcript of proceedings, 2 August 2006, p. 75.
49. When it was suggested to Mr Callaghan that he did not take his medication for pain as regularly as he claimed, Mr Callaghan offered to bring his tablets to the Tribunal. The following day Mr Callaghan did not bring the medication but said that Ms Campbell had thrown them out. The next day he produced 5 bottles, each containing some tablets, bearing prescription dates approximately two years ago. The dates on the bottles were consistent with records produced by the Erindale Pharmacy.[41] When Ms Campbell was asked when she threw out Mr Callaghan’s tablets she said she had done so about three weeks prior. Counsel for Comcare argued that this evidence was inconsistent with Mr Callaghan’s claim that he was taking pain relief medication on a daily basis. We are satisfied that at the time of the hearing Mr Callaghan was not taking medication for pain on a daily basis.
Mr Callaghan has made unfounded allegations against other employees who made statements contrary to his interests
[41] Ex. A7.
50. Mr Callaghan alleged that Mr Bradley has been involved in improper access to and use of Australian Federal Police records. He also claimed that Mr Shepherd had been removed from business premises operated by Mr Callaghan when Mr Shepherd was acting as a debt collector and he suspected Mr Shepherd had held a grudge against him ever since. Mr Callaghan alleged that Mr Shepherd had told him he (Mr Callaghan) had secured a full-time position but then had given the positions to others. Both Mr Bradley and Mr Shepherd denied the allegations made against them and having observed each of them give evidence we accept their denials as truthful. We also take into account that Mr Callaghan did not produce any further evidence to support his allegations.
Mr Callaghan has made inconsistent reports as to the incident on 29 January 2003
51. Mr Callaghan was examined by Dr Griffith, Consultant Surgeon, at the request of his solicitors on 15 September 2004. According to Dr Griffith’s report [42] Mr Callaghan described what happened in these terms:
“While engaged in cycling exercise, without warning the clamp holding the seat slipped, dropping him almost vertically with abrupt arrest of his downward progress after some 45 cm. He stated this produced acute compressive effects on his spine with immediate pain. He stated that he was shocked, hobbling his way to the workshop after the exercises, and subsequently developing pain in his legs and the calf and foot in an S1 distribution, principally on the right side.”
[42] Ex. R16.
52. Dr Burke, Consultant Occupational Physician, examined Mr Callaghan at the request of Comcare’s solicitors on 27 October 2004. Dr Burke records Mr Callaghan’s description of the incident as follows:
“He was in the gymnasium cycling on an exercise bike, when the seat on the bike dropped down to the base. There was a jar; he stated he ‘saw stars’ but did not think anything of it.” [43]
[43] Ex. R17.
53. Comcare’s solicitors also arranged for Mr Callaghan to be examined by Professor Lance, Consultant Neurologist. This examination took place on 28 September 2005. Professor Lance reported that Mr Callaghan:
“....said that the seat of the bicycle dropped from the highest to the lowest setting, a distance of about 3 feet, without warning, injuring his lower back. He said that he ‘saw stars’ and reported the accident to the supervisor. Pain in his lower back was similar to the pain he had experienced before, in 1995, but was more severe. He said that he was incontinent of urine on several occasions……” [44]
[44] Ex. R18.
54. On the basis of the clinical notes [45] it appears that on 4 February 2004 Mr Callaghan told Dr Pryor that he “has been going well with work gym” and did not mention the bike incident at all.
[45] Ex. R14.
55. We are satisfied that Mr Callaghan has been inconsistent in describing the physical effects on him of the incident when the seat of the exercise bike slipped.
CONTENTIONS ON BEHALF OF MR CALLAGHAN
56. Counsel for Mr Callaghan contended that in order for us to decide that Comcare’s decisions should be affirmed we must find that Mr Callaghan, Ms Campbell, Mr Turner and Mr McCormack were all untruthful witnesses. He also argued that such a decision would also necessitate a finding that Mr Crampton was part of a conspiracy to lie or was easily fooled by Mr Callaghan’s pretending to be in pain. He argued that neither Mr Shepherd nor Mr Bradley was a credible witness and that Mr Huxley had no reason to remember what happened in the gym class on 11 March 2004.
57. Counsel also relied on the proposition that because Mr Callaghan was able to carry out his duties immediately prior to the class on 11 March 2004 and was seen to be unable to walk properly and was complaining of being injured immediately after, then the only reasonable hypothesis, unless the witnesses called by Mr Callaghan are lying, is that Mr Callaghan suffered an injury in the intervening period.
DETERMINATION OF THE ISSUES
58. We do not accept the proposition put by Mr Callaghan’s Counsel. We need not make a finding that Mr Callaghan and other witnesses are untruthful before we can decide that the decisions of Comcare should be affirmed. The correct position is that in order to be satisfied Mr Callaghan is entitled to compensation under subsection 14(1) of the Act in respect of either claim we must be satisfied, on the balance of probabilities, Mr Callaghan suffered an injury or injuries as defined. If, after consideration of all the evidence we cannot reach this degree of satisfaction, Comcare’s liability to pay compensation has not been established and the decisions under review must be affirmed. This does not require a finding that a particular witness or witnesses is, or are, untruthful.
59. It is essential to carefully consider the decisions under review when deciding the correct decision to be made in a situation in which the Tribunal cannot be satisfied as to the existence of certain facts on the balance of probabilities. In McDonald v Director-General of Social Security (1984) 1 FCR 354, Woodward J put it this way:
“If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.” [46]
[46] At p. 356.
60. The decision under review in each of the applications A2004/221 and A2005/123 is that the decision maker was not satisfied Mr Callaghan suffered an injury in the circumstances alleged. With reference to the examples given by Woodward J the decision in each of the applications before us was that Mr Callaghan was never entitled to compensation. It follows that if we are not satisfied of the facts necessary to entitle Mr Callaghan to compensation in either application the decision under review must be affirmed.
61. We turn to the incident of 29 January 2004 involving the exercise bike. It is not in dispute that Mr Callaghan was using the bike when the seat suddenly collapsed. However we are not satisfied on the balance of probabilities that he suffered an injury at the time, be it a new injury or an aggravation of the injury he suffered in September 2003. There are several aspects of the evidence which cause us to reach this conclusion.
62. Mr Callaghan describes a substantial jarring of his body of sufficient force to cause tingling down the back of both legs, to cause him to “see stars” and to cause significant bruising to the inside of both thighs and his right testicle. Mr Callaghan says that the instructor, Mr Huxley, would not permit him to continue with the class and that he sat on a bench near the door for fifteen to twenty minutes.[47] This description of the immediate effects experienced by Mr Callaghan is to be contrasted with the evidence of Mr Douch who says that Mr Callaghan commented that the fall had hurt his back and he then resumed the warm-up exercise on the bike. We also take into account that although Mr Huxley recalls the incident of the seat slipping he does not recall Mr Callaghan complaining of being injured. It is reasonable to expect that Mr Huxley would have recalled if Mr Callaghan had made such a complaint as it would have raised concern in a person in Mr Huxley’s position that Mr Callaghan had suffered a potentially serious injury. We are satisfied on the basis of the records kept by Mr Huxley and his evidence that he checked the equipment before beginning the classes that he was a gym instructor who was careful in the conduct of his classes and would have noted any complaints of significance.
[47] Transcript of proceedings, 2 August 2006, p. 47.
63. We are also left in doubt as to the type of bike being used by Mr Callaghan at the time. Mr Callaghan says it was not the type of bike in evidence, but an older type. Mr Crampton recalls that the older type of bike was in the gym at some stage but was unsure as to when. It is not in dispute that the older bikes were in the gym in March 2004. Mr Huxley, however, has said they were not used during sessions conducted by him. We also take into account that if the bike being used by Mr Callaghan was of the type in evidence it is unlikely that he would have suffered the injury he claims. His Counsel acknowledged this was so.[48]
[48] Transcript of proceedings, 4 August 2006, p. 23.
64. We also take into account that Mr Callaghan did not report the injury when he saw his general practitioner, Dr Pryor, on 2 February 2004 (only 4 days after the incident) and again on 4 February 2004. This is unusual in view of the bruising and pain Mr Callaghan says he suffered and Dr Pryor’s note of 4 February 2004 that Mr Callaghan “has been going well with work gym.” [49] In evidence Mr Callaghan at first said he did report the incident to Dr Pryor on 4 February 2004, then said he did not know if he did, but that he thought he reported the incident to Dr Pryor in April 2004.[50]
[49] Ex. R14.
[50] Transcript of proceedings, 2 August 2006, p. 51.
65. There are also considerable discrepancies in the evidence relating to the alleged injury on 10 or 11 March 2004. Mr Callaghan initially claimed the injury occurred on 10 March 2004 but at the hearing said that it occurred the following day. Mr Callaghan said that Mr Huxley spoke to him immediately after he was injured and told him to be seated until the class finished. Mr Huxley says he first learnt of the alleged injury the following Tuesday 16 March 2004.
66. Mr Callaghan’s version of the events is to some extent supported by the evidence of Mr Turner and Mr McCormack but they gave evidence based on what they observed Mr Callaghan to be doing as he walked across the carpark and on what he told them had happened. Their evidence must be considered in light of the evidence of Mr Bradley that Mr Callaghan did not complain of being injured to him and was walking normally. There is also the evidence of Mr Huxley that Mr Callaghan showed no sign of discomfort or injury.
67. There has been no satisfactory explanation given as to why Mr Callaghan did not seek medical attention after the incident until the evening of 16 March 2004. Nor was there a satisfactory explanation as to why Dr Rasaratnam was not told by either Mr Callaghan or Ms Campbell of the incident in the gym which was said to be the cause of Mr Callaghan’s condition at the time of the home visit. Although it was submitted that Mr Callaghan was incoherent at the time, on his own evidence he did have a discussion with Dr Rasaratnam. If Mr Callaghan was incoherent it raises a question as to why Dr Rasaratnam would not have enquired further and perhaps prescribed additional treatment or even hospitalisation.
68. There is some support for Mr Callaghan’s contentions in the evidence of Mr Crampton, however, Mr Crampton’s evidence also relies on his observations of how Mr Callaghan was moving and what he was told. On the other hand there is the evidence of Mr Bradley that when he spoke to Mr Callaghan on 16 March 2004 (the last day he attended work) Mr Callaghan said that he was “a bit sore in the hip” [51] but Mr Bradley did not notice anything unusual in Mr Callaghan’s appearance.
[51] Ex. R12.
69. Looking at all of the evidence and taking into account the matters referred to above and the findings we have made in relation to the reliability of Mr Callaghan’s evidence,[52] we are not satisfied on the balance of probabilities that Mr Callaghan suffered an injury on 29 January 2004 or on 10 or 11 March 2004. This does not mean we have found that any of the witnesses have been deliberately untruthful. It simply means that having considered all of the evidence we cannot be satisfied to the degree required to make a finding that Mr Callaghan is entitled to be compensated under section 14 of the Act.
[52] Paragraphs 38-55 of these Reasons.
70. It follows that the decision to deny liability for certain medical expenses which is the subject of application A2005/171 will be affirmed.
DECISION
71. In application A2004/221 the decision of Comcare made 23 July 2004 denying liability to compensate Mr Callaghan for an injury claimed to have occurred on or about 11 March 2004 is affirmed.
72. In application A2005/123 the decision of Comcare made 16 May 2005 denying liability to compensate Mr Callaghan for an injury claimed to have occurred on 29 January 2004 is affirmed.
73. In application A2005/171 the decision of Comcare made 20 June 2005 denying liability to compensate Mr Callaghan for the cost of treatment incurred in relation to a claimed injury is affirmed.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 2 – 4 August 2006
Date of Decision 7 September 2006
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Lander & Co
Counsel for the Respondent Ms L Walker
Solicitor for the Respondent Australian Government Solicitor
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