Curtis and Military Rehabilitation and Compensation Commission

[2007] AATA 1563

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1563

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/119

VETERANS' APPEALS  DIVISION		)
Re		ALAN CURTIS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date18 July 2007

PlaceHobart  

Decision The appeal is dismissed and the decision under review is affirmed.

(Sgd) Ms A F Cunningham

Senior Member

CATCHWORDS

Compensation – claim for low back injury - back injury sustained during Naval service – current diagnosis of degenerative lumber intervertebral disc disease – issue whether this results from service injury Tribunal found no connection – decision under review affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 Section 123A

Commonwealth Employees Compensation Act 1930 (the 1930 Act) Section 9(1)

REASONS FOR DECISION

18 July 2007 Ms A F Cunningham (Senior Member)   

1.      This is an application for review of a decision of the Military Rehabilitation and Compensation Commission of the Department of Veterans’ Affairs (MRCC) made on 5 May 2005 denying liability for a lower back injury.  The decision affirmed an earlier determination dated 19 November 2004.

2.      The issues for determination by the Tribunal are whether Mr Curtis suffered a lower back injury in the course of his service with the Royal Australian Navy and if so whether his current condition of degenerative lumbar disc intervertebral disease results from that injury.

3.      Mr Curtis’ application for compensation is made pursuant to the provisions of the Safety Rehabilitation and Compensation Act 1988.  Section 123A of that Act provides that liability for the injury is to be determined in accordance with the provisions of whichever Act was in force when the injury was suffered.  Mr Curtis’ period of service was between 24 September 1966 and 23 September 1975.  Accordingly his application for compensation is to be considered in accordance with the provisions of the Commonwealth Employees Compensation Act 1930 (the 1930 Act) and in particular Section 9(1) which states as follows:

9.(1)If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.

4.      It was Mr Curtis’ evidence that prior to joining the Navy in 1966 he was a keen sportsman with a healthy constitution and no history of back problems.  Within a month of joining the Navy he sustained an injury to his back which he contends is related to his current back condition which has been diagnosed by Dr Turner, a retired orthopaedic surgeon as degenerative lumbar intervertebral disc disease with a disc protrusion at L5/S1.

5.      The T-documents were tendered in evidence which included medical records relating to the applicant’s period of service.   Mr Curtis expressed concern that several of his records were not included which included X-ray and other medical reports.   The Tribunal however was not informed as to the details of these missing records nor how they could have assisted the Tribunal in its determination.      Mr Curtis queried why his entry medical record had not been included in the T-documents.  A copy of this document was tendered in evidence at the hearing.    The Tribunal accepts the evidence that prior to enlisting with the Royal Australian Navy on 24 September 1966, Mr Curtis had not suffered from back pain.

6.      The injury which Mr Curtis contends gave rise to his current condition occurred according to the medical records, on 21 October 1966.    Mr Curtis describes how at the end of the football season he was directed with three other members to lift and remove several goal posts on a football field.    He said that he felt “something go in his back”, but went on to undertake physical training.     His back felt uncomfortable which led him to complain during parade duties.   He was ordered to continue with the parade and collapsed in pain.  He was subsequently sent to hospital.     Mr Curtis contends that this injury is the cause of his current lower back condition.

7.      The daily medical record relating to this injury is at T4 in the T-documents and records as follows:

“On straining this am 1100 when trying to lift up football posts he developed L.B.P. which has become progressively worse. Now 1700 No chest pain”.

The record goes on to record pronounced scoliosis to right maximal at T7 where he is locally tender in the midline.  Scoliosis was less apparent when bending forward.  An x-ray of the mid-dorsal spine was directed.

8.      Mr Curtis maintains that despite the diagnosis of “strained dorsal chest”, the injury that he sustained was to his lower back.  He referred to the notes which stated that he had “no chest pain”.  He queried why an x-ray was ordered for his mid-dorsal spine in these circumstances. 

9.      A copy of this medical record was put to Mr Turner.  He agreed that inconsistencies are apparent in that there is a reference to L.B.P. (lower back pain) followed by a request for an x-ray of the mid-dorsal spine.  Mr Turner queried the terminology used in the diagnosis but said that in his opinion, “the problem was up between the shoulder blades”.  Consistent with this opinion is the reference to T7 and tenderness in the mid-line.  This is not necessarily inconsistent with a lack of pain in the chest for the pain may have been to the middle back. 

10.     Injury to the middle back on this occasion is consistent with subsequent medical records namely, T6 which is dated 28 May 1971 and T7 dated 29 May 1972.  Both of those incidents Mr Curtis contends, relate to the original injury sustained in October 1966 at the football ground rather than subsequent accidents.  Whilst the medical record dated 28 May 1971 refers to back injury and the cause of injury being “football training at G.L.”, Mr Curtis contends that he did not play football whilst stationed with HMAS Stuart and this “back injury” is a recurrence of the pain that he sustained in 1966.

11.     The medical record at T7 dated 29 May 1972 contains a diagnosis of back pain and specifically states “PH of back injury 1966”.  There is a reference to back pain across the centre of the back which was present on prolonged sitting or lying and became a continuous ache.  Panadol, dencorub and physiotherapy were prescribed. 

12.     The following day Mr Curtis was referred for an x-ray of the thorocolumtar spine as there had been “minimal response to treatment”.  Again the reference was to severe pain in the mid-back between the scapula.

13.     The only medical record with respect to lower back pain is that at T4 which relates to the original injury concerning the goal post removals.  As noted above, however, this medical record also refers to tenderness in the mid-line and contains a direction for an x-ray of the mid-dorsal spine.  The diagnosis was that of a strained dorsal chest.  One explanation for the inconsistencies according to Mr Curtis is that he does not believe that the medical officer, A Verbach was medically qualified.  He contended that pinned to the shoulders of the shirts worn by naval doctors were gold bars with red inserts and that any ranked officers wore such a badge.  He does not recall that the person who examined him wore any such insignia.  When Mr Curtis was cross-examined he said that he had only remembered this discrepancy some three years ago and had not previously thought about it.  The Tribunal is unable to place much weight on this contention given that the incident occurred some forty years ago when Mr Curtis was 17 years of age and obviously in some pain following an injury.

14.     There does not really appear to be any explanation for the reference to lower back pain in the medical record of 21 October 1966.  It may be that Mr Curtis did suffer some pain in his lower back but there is no basis upon which the Tribunal can conclude that this injury was ongoing and is referable to his current condition, described as degenerative lumbar intervertebral disc disease.  The Tribunal accepts Mr Turner’s opinion that it is more likely that the injury sustained on that day was to the dorsal chest area which is consistent with the x-ray directed and the subsequent medical records of pain in this area.  The next recorded medical record following this injury was on 20 September 1967 when dencorub was prescribed.  A painful sternum after a football injury was noted.  Mr Curtis said that he had no recollection of this attendance.

15.     Nor did Mr Turner find it remarkable that the record stated that Mr Curtis suffered scoliosis following the injury when there was no history of him suffering from this condition.  Mr Turner pointed out that postural scoliosis can develop rapidly even within a period of a day.

16.     Reference was also made to Mr Curtis’ medical discharge statement dated 11 June 1975.   The medical examination notes recorded Mr Curtis’ spine as “normal”.  The only abnormal reference was with respect to lower extremities, namely his right knee.  Similarly in Mr Curtis’ own discharge statement, the only reference to a current disability is with respect to the right knee.  Mr Curtis refers to his back injury in 1966 and on 30 May 1972 in the section recording “disabilities during service”.  However this injury is not included in the section referable to disabilities suffered “at present”. 

17.     It was Mr Curtis’ evidence that he suffered from back pain following his discharge from the Navy. There is little evidence to support this however and indeed his activities following service are not consistent with this contention.  Following his discharge Mr Curtis contemplated an apprenticeship in the building industry but took a job as a builder’s labourer.  He said that his back was not a consideration when he was seeking work at this time.  Nor were any medical records produced with respect to any consultations regarding back pain.  Mr Curtis recalled taking 5 days leave from his employment some time ago for back injury but the type of injury was not explained and there is no basis upon which the Tribunal could connect this episode to the original injury suffered during service.

18.     The Tribunal is in no doubt that Mr Curtis is currently suffering a back condition as diagnosed by Mr Turner.  It was Mr Turner’s evidence that his current condition is consistent with the radiology report undertaken in October 2006.  Mr Curtis presented his evidence in a candid and considered manner.  There was no attempt to deliberately mislead the Tribunal and Mr Curtis’ difficulties in recalling the details of events which occurred well over 30 years ago are understandable.  In such circumstances the Tribunal is inclined to give greater significance to contemporary written records and in particular the medical reports tendered in evidence.  The absence of medical records following Mr Curtis’ discharge from the Navy is also notable.  Whilst the Tribunal does not totally reject the suggestion that Mr Curtis suffered a lower back injury as a result of having to move the goal posts as directed, it is more likely that this was a transient injury as there is no evidence to support a finding that it has been ongoing or connected with Mr Curtis’ current pathology.

19.       Nor is there any basis upon which the Tribunal could connect his current condition with the middle back injury sustained in 1966.  It is Mr Turner’s evidence that Mr Curtis’ current pathology is consistent with a person of Mr Curtis’ age.  It is a degenerative condition and one which is not triggered by any sort of trauma.  Mr Turner’s rejection of Mr Curtis’ claim that his lower back pain travels up to his middle spine could suggest that this is a separate condition.

20.       In conclusion, the Tribunal is satisfied that Mr Curtis suffered an injury during the course of his employment with the Navy in October 1966.  The Tribunal accepts that Mr Curtis currently suffers from degenerative lumbar intervertebral disc disease with a disc protrusion at L5/S1.  The Tribunal is not satisfied however, that there is any connection between the 1966 injury or any other injury that occurred during his period of service and Mr Curtis’ current back condition.

21.     For these reasons the appeal is dismissed and the decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ann Cunningham (Part-Time Member)

Signed:   H Healy (Administrative Assistant)

Date/s of Hearing  1 June 2007
Date of Decision  13 July 2007
Counsel for the Applicant          Mr A G Curtis
Solicitor for the Applicant           Self-represented
Counsel for the Respondent     Mr A Moulds
Solicitor for the Respondent      Dibbs Abbott Stillman