Crellin and Comcare
[2001] AATA 389
•8 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 389
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T1998/143
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT JOHN CRELLIN
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr C P Webster (Senior Member)
Date8 May 2001
PlaceHobart
Decision The decision under review is affirmed.
[Sgd C P Webster]
Senior Member
CATCHWORDS
Compensation – lower back injury – whether applicant entitled to permanent impairment payment – decision affirmed.
REASONS FOR DECISION
8 May 2001 Mr C P Webster (Senior Member)
Issues
Mr Robert John Crellin ("the applicant") seeks a review of a decision of Comcare ("the respondent") of 29 January 1998 which rejected a claim for a lump sum payment for permanent impairment in respect of a back injury caused on 31 May 1985, when he was thrown against a bulkhead on HMAS Wollongong.
The EvidenceThe applicant represented himself.
The 'T' documents were tendered into evidence. The applicant gave oral evidence. His oral evidence was as follows:-
(a)He joined the Navy in April 1976, and was serving on HMAS Wollongong on 31 May 1985 when it ran aground and sank.
(b)During the sinking he was thrown against the bulkhead of the ship several times and suffered an injury to his back. He was off work for 5 days having been hospitalised for only a few hours.
(c)That he had no "real episodes of back pain that (he) can recall" … "that (he) would describe as severe or anything" from his return to work in June 1985, until he suffered pain in his back when he was playing baseball on 28 July 1986. He was off work 3 days as a result of injuries suffered in that incident.
(d)He was able to work for 14 months between the two incidents without any problems. He returned to his pre-accident sporting activities and normal pre-accident employment duties.
(e)After leaving the Navy, he worked as a self-employed electrician from 1988 until 1991.
(f)In September 1990 he saw a general practitioner, Dr. George, for pain in his back. He also saw another doctor about that time on 5 – 6 occasions.
(g)In about 1990 his back was persistently in pain, and eventually he ceased work due to back pain in 1992. From 1990 to 1992 he had time off work as a result of pain in his back.
(h)From 1992 to 1994 he did not work until he came to Tasmania, where he obtained work as a maintenance electrician at INCAT, where he worked for 18 months until he retired due to problems with his back.
He described his present medical symptoms, and his resulting physical limitations.
Under cross-examination the applicant stated:-
(a)In November 1986 there was another episode of back pain, not attributable to any specific incident.
(b)He consulted a doctor in December 1996, when he complained of a tender right sacro elbow joint subsequent to lifting his son. Again he was not incapacitated for work.
(c)He did not see a doctor again until 2 September 1990, when he complained of low back strain subsequent to playing with his children.
(d)That in 1995 he suffered a back injury while performing the duties of a goal umpire at a football match and was off work for 2 to 3 days.
(e)That since leaving INCAT in 1996, he has worked supervising electrical contractors and despite losing that work, due to reasons not relevant to these proceedings, he is physically capable of such work.
The respondent did not adduce any oral evidence, but relied on medical reports tendered with the 'T' documents, and tendered 2 reports of Dr. Peter Stevenson, dated 29 May 1999 and 1 February 2000.
In his report of 29 May 1999, Dr. Peter Stevenson, a consultant physician, considered that the applicant suffered from a degenerative disc disease of the two lower lumbar discs. He considered that the degenerative condition was attributable to the ageing process. He did not consider that the injury of 31 May 1983, which he described as bruising of the spinal muscles, caused, contributed or aggravated the degenerative disc disease.
Dr. Stevenson considered that the applicant suffered a 5% impairment to his back, which resulted from a degenerative back disease.
In his report of 1 February 2000 he confirmed his view that the applicant's lumbar degenerative disease was likely due to constitutional and predominantly genetic factors.
Mr. John Liddell, a neurosurgeon, provided several reports. He considered that the applicant suffered a broad-based disc bulge at L4/5 associated with a disc herniation to the right S1 nerve root. He attributed this problem to the incident of 31 May 1985.
Mr. Peter Field, an orthopaedic surgeon, also provided several reports. He agreed with Mr. Liddell's opinion, but attributed the bulging and disc herniation to multiple level disc degeneration.
Mr. Field considered that this medical condition was unlikely to be directly related to the incident of 31 May 1985. He considered it was unlikely that that incident was caused by the underlying multiple level disc degeneration.
The applicant was a very poor historian. The Tribunal has no confidence in his version of the sequence of events and the precise circumstances of each event. This does not however, affect the Tribunal's finding of facts as the principal facts relied upon by the Tribunal, in reaching a decision are not in dispute. The Tribunal considers that the applicant has exaggerated the pain in his back after 1990, and exaggerated the effect that this problem had on his ability to work as a self-employed electrician. His version is inconsistent with job applications he made at that time.
The Tribunal finds as fact the following:-
(a)That on 31 May 1985 during the sinking of the HMAS Wollongong, the applicant suffered a compensable injury to his back which incapacitated him for 5 days.
(b)That following that incident the applicant had no further problems with his back, until he suffered an injury while playing baseball in July 1986 which incapacitated him for 3 days.
(c)That he suffered an injury to his back in 1996 which did not incapacitate him, and that he did not have any further problems with his back until 1990.
(d)The Tribunal accepts that the applicant consulted doctors concerning his back on several occasions after 1990, but cannot reach a conclusion as to the frequency of such consultations.
(e)The Tribunal concludes that the applicant was able to work with minimal difficulty until at least 1996.
Application of the Law
The first issue which, the Tribunal must consider, is whether the applicant is suffering any injury which is attributable to the incident of 31 May 1985.
The Tribunal prefers the opinions of Dr. Stevenson and Mr. Field to that of Mr. Liddell on this question.
It appears to the Tribunal that Mr. Liddell was not provided, by the applicant, with a full history of the applicant's medical condition and treatment between 1985 and December 1995 (when Mr. Liddell first saw the applicant). That Mr. Liddell was not informed that the applicant had suffered an injury playing baseball, or had consulted medical practitioners, as a result of pain when lifting his son and participating as a goal umpire.
The history given by the applicant at the hearing is more consistent with the opinion of Mr. Field and Mr. Stevenson, than that of Mr. Liddell.
The Tribunal therefore finds that the applicant is not suffering any injury which is attributable in any way to the incident of 31 May 1985.
The applicant must therefore fail in the review.
DecisionThe decision under review is affirmed.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 13 March 2001
Date of Decision 8 May 2001
Counsel for the Applicant Mr Crellin appeared on his own behalf
Counsel for the Respondent Ms A McMahon
Solicitor for the Respondent Mr D Wilson (AGS)
0
0
0