Church and Comcare
[2003] AATA 945
•24 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 945
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/421
ADMINISTRATIVE APPEALS DIVISION ) Re GRAHAM CHURCH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date24 September 2003
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) J Handley
Senior Member
COMPENSATION; Back injuries in service in the Army in 1968 and 1969; treatment records available; discharged in April 1970; back pain alleged subsequently with incapacity; whether applicant affected now by injuries in service; decision affirmed.
Veterans’ Entitlements Act 1986
Commonwealth Employees’ Compensation Act 1930 s16
REASONS FOR DECISION
24 September 2003 Mr J Handley, Senior Member 1. The applicant enlisted in the Royal Australian Army on 1 May 1968. He was discharged on 30 April 1970. At discharge he had achieved the rank of “Trooper”.
2. On 14 October 1999 Mr Church made a claim upon the Department of Veterans’ Affairs seeking acceptance under the Veterans’ Entitlements Act 1986 of the conditions “right ankle (sprain); collapse and unconscious; cardiac problems”. On 22 December 1999 an officer of the Department of Veterans’ Affairs rejected the application on the basis that the applicant was not a “veteran” or “a member of the Forces” within the meaning of the Veterans’ Entitlements Act.
3. On 19 February 2000 Mr Church made a claim upon the Commonwealth Department of Veterans’ Affairs – Military Compensation & Rehabilitation Service – for the conditions of “septic arthritis right ankle; diabetic; heart murmur; back problems”. The claim forms records that the “injury” occurred on 21 November 1968. On 31 August 2000 an officer of the Military Compensation & Rehabilitation Service decided that Mr Church had suffered injuries arising out of, or in the course of his military service, being “episodes of back strain” on 21 November 1968 and on 9 July 1969. It was further determined that the “Commonwealth” was not liable to pay compensation from 18 March 1970 “as the available evidence indicates that you are no longer suffering from the service related injuries”. In that decision specific reference was not made to the other injuries claimed by the applicant.
4. In a reviewable decision dated 21 March 2001 the Director of Military Compensation & Rehabilitation within the Department of Veterans’ Affairs affirmed the primary determination made on 31 August 2000. Additionally, it was decided that the Commonwealth was prejudiced by reason of the claim being lodged more than 30 years after the incidents in service. Section 16 of the Commonwealth Employees’ Compensation Act 1930 (“1930 Act”) was referred to and it was decided that it would have “been appropriate for the delegate to have precluded your claim for failure to comply with a notice provisions of the 1930 Act, given the clear prejudice to the Commonwealth’s ability to assess the cause or connection between your current back problems and your military employment”.
5. In a Statement of Facts & Contentions lodged by the respondent’s solicitors prior to the commencement of the hearing of this application, it was contended that the applicant’s claim was “barred by s16 of the Commonwealth Employees’ Compensation Act 1930 as the applicant has not made claims for compensation within 6 months of the occurrence of the accidents”.. The respondent withdrew this objection after the hearing commenced. The review thereafter concerned only the relationship between the back injuries in service and the symptoms now suffered by the applicant.
6. Accordingly, this application reviewed the reviewable decision made by the respondent on 21 March 2001. The hearing commenced in Bendigo on 4 April 2003 and resumed in Melbourne on 9 and 14 July 2003. Mr De Marchi appeared on behalf of the applicant and Mr Lenczner appeared on behalf of the respondent. The applicant and his wife gave evidence in Bendigo. Doctor Peter Tisdall and Mr Brian Davie gave evidence in Melbourne. A number of documents were received into evidence and will be referred to in these reasons.
7. The applicant is presently 55 years of age having been born on 6 November 1947. At the present time he is in receipt of a partial social security pension. He and his wife own a 30 acre dairy farm at Tongala in northern Victoria. Mr Church said that his wife “runs the farm”.
8. On 1 May 1968 Mr Church was called up for national service. He completed three months of “rookie training” at Puckapunyal in Victoria and jungle training at Canungra in Queensland.
9. When at Canungra Mr Church said that he had been exercising and training in an obstacle course. He said he collapsed and suffered severe lower back pain. He recalled admission to a hospital where he remained as an in-patient for four or five days. He also recalled that he had pain in the back of both legs. Upon discharge from hospital he was transferred to Puckapunyal in Victoria and had preliminary medical examinations preparatory to service in Vietnam. Mr Church said that he was then excluded from Vietnam service because of the outcome of the medical examination and was transferred into a stores job at Puckapunyal. He said he was not given a reason for being excluded from Vietnam service.
10. Thereafter Mr Church recalled that he had ankle pain particularly when marching.
11. On 12 August 1969 (T-documents T3 page 18) Mr Church said that he suffered another back injury whilst participating in a game of Australian Rules Football within service. He said that he was kicked in his lower back and taken by ambulance to Puckapunyal Hospital. He recalled that he suffered kidney injuries by reasons of the presence of blood in his urine. He also recalled severe back pain which he said has progressively worsened since that episode. Mr Church denied back injuries other than within service.
12. In cross-examination Mr Church acknowledged that at a pre-enlistment medical examination he had been found to have “swollen or painful joints”, referable to his ankles. His left ankle was then swollen as a result of a sprain nine days prior to the medical examination and it was reported that he had suffered a right ankle sprain at football in 1966. The medical examination also records that he had had “knee, back or joint injury” however Mr Church said that this injury was referable to his ankles only. He said he could not recall any backache or back pain prior to enlistment.
13. Mr Church was then taken to a “Report of an Injury or Illness” (T-3 page 36) completed on 3 December 1968 following back injury at Canungra on 22 November 1968. The “Statement of Injured Person” records “as a member of Sub Unit Trg Course, I suffered an attack of heat exhaustion whilst commencing the Confidence Course at JTC. Pains in the lower back have persisted after recovering from the initial attack of heat exhaustion”.. The report of the medical officer recorded in the same form describes the injury as “heat exhaustion - muscular back strain sustained on duty. Persistent spinal erector muscle tenderness and spasm”.. The doctor recorded the probable period of incapacity as six days and opinions were given that the injury is “minor” and is unlikely to cause “permanent ill effects”. Mr Church said that he recalled being taken to hospital following the incident at Canungra and forms were completed. He said he could not recall whether he suffered back and leg pains because of twisting or bending or other activity. He did recall that he suffered severe pain. He said the back pain occurred before he collapsed. Thereafter Mr Church said that he had continuing back pain but acknowledged that he was able to play football in July 1969 when he was then based at Puckapunyal.
14. Mr Church was then taken to another “Report of an Injury or Illness” completed on 12 August 1969 (T3 page 18). Mr Church then recorded that on 9 July 1969 whilst playing Australian Rules Football a player from an opposing team “jumped in the air and landed with both his knees in the lower part of my back”. Mr Church was taken by stretcher to the Puckapunyal Hospital. The attending medical officer described the injury as “tender in sacro-iliac region some spasm of sacrosphinalis muscle. Mild restriction of movements”.. The medical officer recorded that the probable period of incapacity would be “one month”. The officer also recorded that in his opinion the injury would be unlikely to cause permanent ill effects and that the injury was of a minor nature. It was also recorded that whilst the injury resulted from the stated cause, there was no evidence of a pre-existing disability or aggravation of any recent injury.
15. At pages 26 and 27 of the T-documents a discharge medical history questionnaire dated 18 March 1970 records prior ankle and back injuries. The medical officer recorded that the symptoms of back pain following the football injury of July 1969 “resolved” but the applicant was “still c/o back pain on lifting weights”. Mr Church said that he could not recall that examination but did recall that he did suffer back pain when lifting in the stores at Puckapunyal. In that occupation he said that he was exposed to bending and lifting. A medical officer has specifically referred to abnormalities of “lower extremities, feet, spine” and reported “dysfunction and poor mobility of feet and ankles. Considered caused by obesity and lack of thorough remedial exercises. No past (x-rays) or present indication of boning or disc injury. Considered muscular strain aggravated by weight. Movements limited by pain lower lumbar region left greater than right. The Board considers the member exaggerates his pain”. At that examination the applicant was found to be 5”6 inches in height and 13.3 lbs in weight (T-3 page 27).
16. Mr Church was then taken to a letter completed by an RSL advocate who assisted him in the making of his claim for veterans’ pension and military compensation. A letter (undated) found at T-12 page 60 (believed to have been written on 11 November 2000 – refer T-13 page 61) does not record back injury in service arising out of football in July 1969. Additionally the applicant was taken to his claim for repatriation pension completed in 1999 where back injuries or injuries of a similar description were not claimed upon the Department of Veterans’ Affairs. Mr Church said that he could not recall why he did not notify Mr Resuggan (the advocate) of the back injuries whilst playing football nor why his back injuries were not claimed upon the Department of Veterans’ Affairs.
17. Following discharge from service Mr Church said that he obtained employment with Kraft at Gunbower and at Girgarre. He later obtained work with Nestle as a field officer which required him to liaise between his employer and local dairy farmers. He eventually purchased a small diary farm with his wife and was initially able to perform some work around the farm but said presently he was unable to undertake any work. He said that all milking of his 60 dairy cows is undertaken by his wife and by reason of him now being unable to bend he is unable to assist her. He said that he is able to relocate electric fences, driving a tractor to put out round bails of hay and drive a four wheel all terrain vehicle.
18. Since 1995 Mr Church said that he has suffered from diabetes, septic arthritis in both ankles, hypertension, cardiac problems and panic attacks. His treatment has principally been with Dr Tisdall in Kyabram.
19. The applicant’s wife, Anne Church, gave evidence and said that she married the applicant on 19 June 1971. She first met him at a “going away party” when it was then intended that he would be transferred to Vietnam for service. She said that she does not know why he was not ever transferred to Vietnam. Mrs Church said that her husband first approached the RSL in 1972 because of back pain but said that he had been told he had no entitlements because he did not serve overseas. She said that he continued to suffer back pain and was granted a Centrelink pension because of it. She said that his “major problems” were his back and his legs and he is often in a “great deal of pain”.. She said that Mr Church had previously helped her on the farm but now he does little. She denied that he had ever suffered any accidents or injuries other than in service.
20. Mrs Church said that her husband suffers panic attacks following episodes of severe pain which he describes to her as being “in his kidneys”. She said that he also suffers “shooting pain” into his left leg.
21. In cross-examination Mrs Church said that between 1969 and 1971 her husband suffered back pain and she did not know of any other illness or injuries at that time. In 1972 she and her husband approached the RSL for assistance because he was then having “back spasms” in the “kidney region”. Assistance was then sought from the RSL to obtain finance to purchase a farm. Legal assistance was not then sought and despite the presence of pain Mrs Church said “we were both young and we had a family and we wanted to get on with our lives”.
22. With respect to back pain subsequent to discharge, Mrs Church said that her husband had a light job with Nestle but he continued to have “niggling back pain daily”. She said that her husband did not speak about his back pain but she knew that he suffered it because, (as an example), she observed him in pain when he would rise to a standing position after being seated. Mrs Church said that her husband has been treated by Dr Tisdall since about 1973 but he had not consulted Dr Tisdall for his back pain until recent years. She said that there have been occasions since the 1970’s when he did not have back pain but had a “niggling type sensation only”. Mrs Church said that he suffered back injury in service and she had assumed it was this injury which precluded him from being transferred to Vietnam.
23. In re-examination Mrs Church said that she had been told by her husband that he suffered back pain at Canungra but that severe back pain occurred after he was “kicked or stomped” in a football match in Puckapunyal.
24. Dr Tisdall gave his evidence by telephone from his rooms in Kyabram where he is in general practice. In report of 18 June 2001 (omitting irrelevant parts) Dr Tisdall reported as follows:
Mr Church completed two years National Service Army training from 1968 to 1970. Mr Church sustained an injury to his lumbar spine in 1970.
Mr Church was posted to Cunungra for jungle training prior to a posting to Saigon in 1970. During his jungle training Mr Church re-injured his back. He served a few months on light duties before being discharged from National Service and was sent home.
I have been treating Mr Church for his back condition. His back pain has become so severe that he has been unable to continue working.
I believe Mr Church injured his back while on National Service Training and over time his condition has deteriorated.
25. In evidence Dr Tisdall said that he has been treating Mr Church since at least 1994 and had obtained a history of back injury in service. He said that whilst he was aware of a back injury during training at Canungra, he did not have details and acknowledged that he had no history of Mr Church suffering a back injury whilst playing football.
26.
Dr Tisdall also said that he had arranged for x-rays to be obtained on 29 April 2003 (subsequent to the commencement of the hearing) where it was reported that the applicant had “minimal degenerative changes at all levels”. Dr Tisdall said persons can have back pain without changes being evident upon
x-ray.
27. In cross-examination Dr Tisdall said that the only detail he had of the applicant’s back injury in service was what he was told and which is contained in his report. Dr Tisdall said that he could not recall whether the information was volunteered or whether he sought it. Dr Tisdall expressed some discomfort giving his evidence because he said that he had not been put on notice to give evidence and had not had an opportunity to consult his notes thoroughly.
28. When asked to comment upon the x-ray findings of 29 April 2003, Dr Tisdall said that the report of the radiologist was consistent with a person of the applicant’s age and weight.
29. In the context of the applicant alleging back injuries in service with continuing back pain subsequently, Dr Tisdall was asked whether he would have expected to have more reported than “minimal degenerative changes” upon x-rays. He said if the injury was “severe” he would have noted greater radiological changes but if the injury was not “severe” it was possible to conclude that there was no ongoing connection between service and back pain.
30. Dr Tisdall said that he was not aware of prior medical records – particularly the records of doctors who treated the applicant during enlistment. He was therefore not aware that a doctor had reported on 18 March 1970 that the symptoms of back pain following the football incident had resolved after one week (T-3 page 26) and the complaints of back pain were then associated with “lifting weights”. He agreed that Mr Church has been overweight for many years which could contribute to an aggravation of back pain. He also acknowledged that the applicant has suffered for many years from diabetes and septic arthritis of his right ankle which has caused an arthrodesis which he regarded as being severe. When asked whether Mr Church had ceased farming because of his ankle injuries and his diabetes Dr Tisdall said he “could not recall”.
31. Dr Tisdall was then asked to refer to his own clinical notes and was asked to comment upon the absence of any clinical recording of complaint of back pain since 1994. When he reviewed his notes Dr Tisdall said “I can’t see too much reference to it”.. He agreed after further inspection of his notes that the only reference to back pain and injury was following a report which was requested in June 2001 (T-15 page 66 – refer earlier).
32. In re-examination Dr Tisdall said that he has prescribed analgesics by reason of the applicant’s back and ankle pain. He regarded Mr Church as being a “genuine man”. He acknowledged that he did not have any history of pain radiating into the applicant’s legs and in reference to the apparent absence of a record of complaints of back pain, Dr Tisdall said “I do not write everything down”. He said that had Mr Church specifically consulted him because of back pain he would have recorded it. However if Mr Church had back pain “because of a constellation of symptoms” he may not have recorded it.
33. Mr Brian Davie, a consultant orthopaedic surgeon gave evidence at the request of the respondent. He examined Mr Church on 26 March 2003. He provided a report dated 31 March 2003 received into evidence as Exhibit 1. The last four paragraphs of his report records his conclusions and findings and those paragraphs are reproduced as follows:
Graham Church has sustained a low lumbar back strain or possible disc injury and it could have developed related to strenuous physical exercise in 1968. I note that your report indicates that he had heat exhaustion. It is possible that he could have injured his back at that time knowing the type of course that he was apparently doing. I believe that the back injury with the army has now resolved, as apparently he was able to play football quite easily the year after. He had a subsequent injury to the back which would have been a renal contusion and not an orthopaedic back injury. Over the years I would think that he has developed degenerative disc disease and arthritis and I don’t think that this is clearly related to his time in the army. In addition he has developed obesity and diabetes. Diabetes is a well known cause of being associated with septic arthritis and I would think that the arthritis in the right ankle was related to the diabetes and not to any misadventure with the Department of Veterans’ Affairs.
In answer to your specific questions he probably now suffers from degenerative disc disease and arthritis in the lumbar spine but x-rays will be necessary to confirm this. I don’t think that his employment with the Department of Veterans’ Affairs has caused, contributed or aggravated his current condition. His current condition is related to age and normal degenerative changes occurring in the back throughout middle age. Bearing in mind that he has been actively working and has up until recently been engaged in farm work. He is not incapacitated for work in view of his work with the army. He is incapacitated by view of normal degenerative change with the onset of obesity and diabetes. If indeed he does suffer from degenerative lower lumbar disc disease this is likely to remain much the same for the rest of his life. The back will be stiff, there will be periods of time with little or no pain and he will get some discomfort from time-to-time.
You have referred to me a number of documents but they are very hard to read. It is apparent that the original problem at Canungra was thought to be a back strain for which a recovery was to be expected. I note the report of the football injury and there doesn’t appear to be any mention of any haemateria and this would appear to have been a soft tissue injury to the lumbar region.
It appears that the injuries sustained to the back in the army were of a minor nature and I don’t think that his present problems are related to any involvement in the army.
34.
In evidence Mr Davie said that the x-rays which he has referred to in his report at the third last paragraph (refer above) were sought by him by the Alfred and Epworth Hospitals where Mr Church has previously been treated for his diabetes and ankle conditions. Those reports were not forthcoming. He was then asked to comment upon the x-ray report brought into evidence by Dr Tisdall following x-rays on 29 April 2003 (refer earlier). Mr Davie said that the radiological findings were consistent with a person of the age of the applicant. He said that he was unable to “draw a linkage” between the back injuries in service and the current findings upon
x-ray.
35.
Mr Davie was asked to comment upon the applicant describing his back pain above his waist or belt line when giving evidence in Bendigo. Mr Davie said that that area is known as the lumbar region however in practice, back injuries of the type described by Mr Church – by regard to his expressed symptoms – would be consistent with lumbo-sacral injury. Nonetheless the reference at page 34 of the
T-documents to the applicant being diagnosed with “bruising of lumbo-sacral region” following the football incident and a finding of “movement almost normal” upon discharge five days after the football incident did not suggest – to Mr Davie – an injury of such a severity that it would continue to manifest at the present time. He noted that x-rays taken on 14 July 1969 did not demonstrate any abnormality (page 35) and that Mr Church had then responded to treatment.
36. In cross-examination Mr Davie agreed that it would not be unusual for a person to be admitted to hospital for “back strain” and he agreed that the injury following the football incident probably was more severe than a “strain” only. Mr Davie said that he was prepared to accept that the applicant had suffered a back strain during strenuous training at Canungra but it must have resolved because the applicant was capable of playing football in the following year. He also noted that Mr Church was then a much younger person. He said that the reference at page 36 to muscle “spasm” was a reference to “irritation” of muscle.
37. Mr Davie was then asked to comment upon a history taken at admission on 9 July 1969 following the football episode where it was recorded that the applicant was unable to walk and in severe left buttock pain. He was then also found to have “severe local tenderness over left sacro-iliac region with lower lumbar midline tenderness”.. Mr Davie said that the degenerative changes now evident upon x-ray would not be referable to the back pain in 1969. Mr Davie agreed with the proposition put to him by the applicant’s solicitor that pain subsequent to service would be consistent with an injury in service. However Mr Davie said that back pain is not necessarily associated with “injury”.. He acknowledged that the applicant did suffer strain and bruising of his back in service but he could find no association between the incidents in service and the present complaints of back pain. Mr Davie said that on the probabilities, the incident at Canungra resolved because the applicant was later able to play football. He said that the second incident whilst playing football was a “direct trauma” however in his experience bruising and muscle injuries “get better” and the applicant’s subsequent symptoms are consistent with age degeneration. He reaffirmed the opinion expressed earlier that he was unable to find a link between the applicant’s service and his present complaints of pain.
38. In re-examination Mr Davie said that the description of “niggling” pain was also consistent with age related degeneration.
Conclusion and Reasons for Decision
39.
In the decision under review the respondent decided that Mr Church had “no eligibility for compensation” for back injury from 18 March 1970. It was on that date that the applicant was medically examined preparatory to discharge from service
(T-3 page 26 and 27).
40. Mr Church was a member of the Australian Army between 1 May 1968 and 30 April 1970. In that service he alleged back injury on two occasions namely 21 November 1968 at Canungra and 9 July 1969 at Puckapunyal.
41. The first incident at Canungra was alleged by Mr Church to have precipitated back injury after he collapsed during a training drill. The mechanism of injury remains (at least to me) unclear however the report of injury at T-3 page 16 records that Mr Church did suffer from heat exhaustion and reported “muscular back strain….. muscle tenderness and spasm”.. The incapacity then certified was for six days and the examining medical officer reported that the injury was unlikely to cause permanent ill effects and would not impair his future efficiency as a soldier, because it was of a “minor nature”.
42. Thereafter Mr Church remained enlisted and he was eventually transferred from Canungra to Puckapunyal. Prior to commencing service at Puckapunyal Mr Church was apparently of the belief that he would be transferred to Vietnam. His wife said that a “going away” party was arranged for him. He was later notified that he would not be transferred to Vietnam. It was said that he was denied the transfer overseas because of pre-existing back injury. There is no evidence in support of this. There is nothing in the documents lodged which would give credence to this allegation. Indeed Mr Church said he did not know why he was restrained from travelling overseas.
43. On 14 April 1969 Mr Church sought treatment for back pain, the condition being diagnosed as “central lower lumbar ache”. The reporting doctor recorded that there was a prior history of “back trouble” in November 1968 at Canungra. The applicant was then reported to have been admitted to hospital with backache and urinary tract infection. Subsequent to discharge from hospital he was reported to have complained of intermittent lower backache being worse in the morning and with running and jarring. Some radiation of pain to the back of the applicant’s thighs was also noted.
44. Curiously, this admission was not referred to by the applicant in his evidence, however in fairness he may have forgotten this admission. On the one hand it would add credibility to the applicant’s account of persisting back pain since the episode at Canungra. On the other hand I would assume that it would have caused some significance to the applicant in the presentation of his application because even in the absence of poor memory, the document existed within the T-documents made available to him well prior to the hearing yet over which he apparently did not rely.
45. On 9 July 1969 Mr Church again suffered back pain when playing football. The mechanism of injury – unlike the episode at Canungra – is well understood. A member of an opposing football team fell onto Mr Church causing him to be admitted to hospital for five days. The diagnosis made was of “bruising of lumbo-sacral region” (T-3 page 34). It was noted on admission that Mr Church was unable to walk with severe pain into his left buttock. He had local tenderness over his left sacro-iliac region with lumbar midline tenderness but without abnormality in his lower limbs and without any abnormal sensations. He was referred for x-ray which did not show any abnormality (page 35). On discharge from hospital on 14 July 1969, it was noted that his “local tenderness” had improved and movement was “almost normal”.
46. After discharge from hospital in July 1969 Mr Church returned to his pre-injury occupation in the Army stores. There is nothing which points to incapacity or treatment for back pain prior to his discharge on 30 April 1970.
47. On 18 March 1970 –preparatory to discharge – Mr Church was medically examined. His prior back pain following the football incident was noted. It was recorded that his symptoms had resolved. It was noted that he was complaining of back pain “on lifting weights”.. X-rays then did not give any indication of bony or disc injury and it was considered that the applicant had experienced muscular strain aggravated by weight (T-3 page 27). The medical officer did note however that the applicant had spinal movements which were limited by pain in the lower lumbar region. The applicant was then 5”6 inches and 13.3 lbs in weight.
48. At discharge from service, Mr Church was 22 years of age. He had suffered episodes of back pain at Canungra in 1968 and at Puckapunyal in 1969. He apparently reported an episode of back pain in April 1969. There is no material presently available which would suggest that the injuries on those three occasions were anything other than muscular in nature. The opinions expressed by the doctors at the time were that the effects of injury would be temporary, they would not cause permanent ill effects, would not impair his future efficiency as a soldier and that the injuries could be regarded as being minor.
49. The hearing of the decision under review was conducted 33 years after the applicant was discharged from service. He is now aged 55 years of age. He was a person who had suffered septic arthritis affecting his ankles and diabetes for many years over which he has had extensive treatment. An x-ray taken after the commencement of the hearing of these proceedings revealed “minimal degenerative changes” in his lower back.
50. I am satisfied and find on the balance of probabilities that Mr Church’s lower back problem is the result of a degenerative disease related to the applicant’s age. This is consistent with the opinion expressed by Mr Davie that his “condition is related to age and normal degenerative changes occurring in the back throughout middle age”.. I also agree with his findings that the incident at Canungra – indeed the episode which also gave rise to treatment in April 1969 – must have sufficiently resolved to permit Mr Church to be able to play football in July 1969. That finding is consistent with the opinions expressed by the doctors at that time with respect to a fit, healthy, young man of 21 years who was undertaking extensive fitness training with the Army. At discharge from Puckapunyal Hospital on 14 July 1969, despite being returned to his unit on sedentary duties for one week with no lifting of weights, the effects of the football incident in my view rapidly resolved. Certainly, by 18 March 1970 when the applicant was examined prior to discharge, the effects of the pre-existing injuries had in my view resolved, consistent with the opinions then expressed by the examining medical officers. Back pain – if it then existed – was thought to be related to lifting weights yet that was not advanced by the applicant as the cause of his back pain.
51. Of considerable significance is the absence of records of medical treatment for back pain subsequent to discharge from service. Records were provided to the Tribunal under summons from the clinic where Dr Tisdall practiced from 1974 until March 2003. There is not one single reference in the 29 years of the applicant’s treatment by Dr Tisdall or other doctors at his clinic of Mr Church attending for treatment of back injury or with a complaint of back pain. Within that time he has been extensively treated for diabetes, septic arthritis, urinary tract infection, kidney ailments, sleep apnoea, tinea, hypertension, cardiac illnesses and panic disorder. On occasions Dr Tisdall has referred Mr Church to specialists practicing in the areas of medicine over which the above complaints related – for example he was referred to Mr Peter Ebeling for treatment of his diabetes and septic arthritis, he was referred to Dr Joh Serry with respect to his panic disorders, he was referred to an occupational therapist for the fitting of a prosthesis associated with the arthrodesis of his right ankle and to a specialist optometrist with respect to visual disturbances. He was also referred to the Caulfield and Alfred Hospitals for treatment of the above conditions. On occasions he was admitted as an in-patient. Yet there was not one single referral to an orthopaedic or like orthopaedic specialist or practitioner for treatment of back pain or back complaint. There is no referral to any physiotherapist or chiropractor for manipulation of his back. There is nothing to indicate that an x-ray was ever authorised or performed by Dr Tisdall with respect to back pain or back injury. Incapacity was certified by Dr Tisdall in 1996 when certificates were written to permit Mr Church to claim sickness benefits from the Department of Social Security. The stated reason then for incapacity was septic arthritis. Mr Church subsequently qualified for invalid pension yet there is no evidence, nor is it apparent from the documents filed whether the applicant’s back injury was ever the subject of examination for the purposes of invalid pension qualification.
52. Dr Tisdall said in evidence that he does not necessarily record every complaint or symptom of his patients. On that basis, there was an innuendo advanced that Mr Church had in fact complained of back pain but it had not been recorded. I dismiss that innuendo. It would border on fantasy to find as a fact that between 1974 and 2003 when medical records are available that Mr Church has complained to his treating doctor of back pain but that on those occasions the treating doctor did not record it or make mention of its treatment or undertake a referral or prescribed medication. Mr Church has clearly been unwell for many years. The illnesses for which he has been treated bear testament to this. His diabetes and septic arthritis particularly have caused him and his doctors considerable concern. Whether those conditions have overwhelmed Mr Church or have masked the symptoms of back pain I am unable to say. I am however satisfied on the probabilities that any back pain suffered by Mr Church subsequent to service has been of such a minor or minimal nature that it has either not warranted complaint to his doctors or, if there was a complaint, it has not warranted treatment.
53. Additionally it would appear that back pain, if suffered, has not been the focus of attention by Mr Church because in his first claim upon the Department of Veterans’ Affairs the “back injury” was not claimed as service related. When it was eventually claimed as part of the compensation claim, the report of injury arising out of the football episode was not notified to the respondent. In these proceedings, that episode was regarded by Mr Church as being the most significant occasion of back injury.
54. Dr Ebeling did note the presence of back pain in his reports of 27 March 2002 and 11 September 2002 but only in the context of immobility and difficulty in exercising associated with the right ankle arthrodesis and the applicant’s obesity. In the history taken by him there is no mention of back injuries in service nor is there any history taken by any of the doctors upon admission to hospitals of back injuries in service or indeed back injuries at all.
55. The report completed by Dr Tisdall on 18 June 2001 is in many ways deficient. It makes no mention of back injury during a football game in service and it concludes that the back pain had become so severe that Mr Church was unable to continue working. There is no history ever having been obtained which would permit him to express that opinion nor of Mr Church ever giving that history. The report of Dr Tisdall is dated 18 June 2001. The last consultation prior to that date was on 31 May 2001. The next consultation is dated 8 July 2001. In Dr Tisdall’s file there is a handwritten document sent by facsimile. The “sender” of the document as may be evidenced by the facsimile imprint is “Resuggan”.. It is dated 4 June 2001. The facsimile number is found in the notes of Dr Tisdall, in his handwriting against a consultation on 24 August 2001. It is not clear to whom the facsimile from “Resuggan” was forwarded. In the absence of any history apparent from the file of Dr Tisdall permitting him to record the “history” and conclusions expressed in his report of June 2001, I am left wondering upon what information Dr Tisdall relied in preparing his report.
56. On review also of the applicant’s claim for veterans’ pension – which has been signed and partially completed by Dr Tisdall – it is now apparent to me why reference is not made to back injury. I am satisfied that Dr Tisdall has not referred to it because at 14 October 1999 (when that claim was made) Dr Tisdall did not know of it.
57. I am satisfied that the effects of service related injury and subsequent back pain had ceased by 18 March 1970. Thereafter back pain can be reasonably and on the probabilities associated with the normal effects of age related degeneration.
58. The decision under review should be affirmed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.Signed: Elsa Genovese
Personal AssistantDate/s of Hearing 4 April (Bendigo) & 9, 14 July 2003 (Melbourne)
Date of Decision 24 September 2003
Solicitor for the Applicant Mr D De Marchi
Counsel for the Respondent Mr J Lenczner
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