Dalgleish and Comcare
[2000] AATA 905
•16 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 905
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1999/741
GENERAL ADMINISTRATIVE DIVISION )
Re JAMES ANTHONY DALGLEISH
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr B. H. Pascoe, Senior Member
Date16 October 2000
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
...….(Sgd) B. H. Pascoe............
Senior Member
CATCHWORDS
COMPENSATION – injuries from accident in 1966 – whether incapacity arising from those injuries – whether accident on journey in compensable circumstances – whether damages from third party precludes compensation – whether incapacity from subsequent accidents
Commonwealth Employees Compensation Act 1930 ss. 9A, 17, 17A
Compensation (Commonwealth Government Employees) Act 1971
The Commonwealth v Wright (1956) 96 CLR 536
Burt and Comcare (AAT 7578A, 25 August 1993)
REASONS FOR DECISION
16 October 2000 Mr B. H. Pascoe, Senior Member
This is an application to review a decision of the respondent dated 24 June 1999 which revoked a prior determination dated 2 October 1998 and determined that the respondent was not liable to pay compensation for crush fracture C5 vertebrae, fractured right radius, fractured right ulna, supracondylar fracture right humerus, sprained right ankle, facial lacerations, severe concussion and fractured nasal bones arising out of a motor vehicle accident on 12 August 1966.
At the hearing the applicant was represented by Mr P. Misso of counsel and the respondent by Mr K. MacFarlane of counsel. Evidence was given by the applicant, Mr Dalgleish, and two orthopaedic surgeons, Mr R. Pease and Mr M. Shannon.
Mr Dalgleish gave evidence that he was conscripted for army service in September 1965. On 12 August 1966 he commenced pre-embarkation leave from Casula, New South Wales prior to his unit's departure for Vietnam. He was to travel to his home in Ballarat with the major part of the journey in a colleague's motor vehicle. South of Wodonga the vehicle was involved in a major collision with another vehicle and Mr Dalgleish was seriously injured. His injuries were those set out in the respondent's determination. He had very limited recollections of his first three weeks of hospitalisation at the Repatriation Hospital at Heidelberg. In the initial period an operation was performed on his right arm. In December 1966 a bone graft was performed on his right ulna. In late 1967 he received a triple fusion of the cervical spine at C3, 4, 5 and 6. In early 1968 a further operation was performed on his nose. He was discharged from the army in September 1967 as medically unfit. On 16 January 1968, Mr Dalgleish lodged a claim for compensation and liability was accepted by determination dated 7 October 1968. In December 1968, a Supreme Court action against the driver of the vehicle was settled for $25,000 and Mr Dalgleish believed he received between $15,000 and $17,000 after costs and repayment of compensation. No further compensation was received in relation to that accident.
Mr Dalgleish said that he returned to his pre-service employment in the boning room at Victorian Inland Meat Authority in October 1967 but was unable to continue due to dizziness and pain. From mid to late 1968 he undertook driving jobs but said that he was not able to continue. In October 1968 he obtained employment with the Victorian Railways in the Ballarat goods shed which involved the tying down of wheat trucks. After two months he was dismissed when Victorian Railways became aware of his accident claim. He then had three months employment as a labourer with Ballarat City Council. In April 1969 he commenced employment in Melbourne with the Department of Social Security. In 1973 he transferred to Darwin with the Department of Housing and Construction returning to Melbourne in 1977 with the same Department. He resigned in 1989 and commenced employment as a contracts administrator with a construction company until made redundant in December 1990. After unsuccessfully applying for several jobs, Mr Dalgleish commenced a course to obtain a Certificate Qualification in Remedial Soft Tissue Therapy. In 1993 he commenced to practice as a Remedial Soft Tissue Therapist from rooms in the city and continues that work currently. He said that he is restricted by his physical condition to working 8 hours per week reduced from 15 hours per week between 1993 and 1995.
In 1975, Mr Dalgleish purchased a 48 acre property some 20 kms from Ballarat which was used on weekends and for some cattle raising. It was sold in 1984 or 1985. In 1982 he and his wife purchased an hotel at Dean, some 130 kms from Melbourne. He continued to work in Melbourne and commuted daily, working in the hotel in the evenings and weekends. The hotel venture was not successful and was sold in 1985. In 1985 he commenced working as a contract office cleaner after normal working hours some three nights per week for three to four hours. This ceased in July 1986.
On 26 July 1986 whilst riding his motor cycle to work, Mr Dalgleish was hit on the left side by a car. He said that he was travelling at some 60 kms per hour and was thrown from his motor cycle skidding some 100 feet along the road. On 31 July 1986 he underwent an extensive operation on his left foot involving replacement of arteries, muscle and skin. He remained in hospital for some three months during which he had virtually no movement in the left leg and foot and suffered from increased stiffness in neck and back. The need to use crutches resulted in increased neck, right shoulder and right arm pain. He is left with a limited range of movement of the left leg and pain if the leg and foot remain in a set position. Mr Dalgleish said that on return to full-time employment in September 1987, he was suffering pain in the neck, head, right shoulder, right and left arms and left leg and intermittent dizziness. In 1991 he commenced receiving compensation for the 1986 accident. In April 1993 proceedings commenced in the court for personal injury in the 1986 accident were settled for $250,000.
Mr Dalgleish said that, currently, he suffers from severe chronic left leg pain, loss of mobility, intermittent pain the right ankle and leg, right thigh pain and discomfort, intermittent pain at the donor sites of artery, vein and muscles from the left arm, headache, chronic pain in the right shoulder, right elbow, forearm and wrist, loss of balance and chest pain in the posterior upper left thoracic position. Mr Dalgleish said that he had never been without neck, shoulder and arm pain since the 1966 accident. While he accepted that the 1986 accident had aggravated the 1966 injuries, he maintained that his current major problems relate to that 1966 accident. He accepted also, that he suffered a whiplash aggravation to his neck in 1983 or 1984 when his motor cycle hit an indentation in the road but had no time off work and the aggravation resolved with three weeks physiotherapy.
Mr Dalgleish accepted that his statement of claim relating to the 1986 accident claimed aggravation to the neck and right arm, headaches, dizzy spells and insomnia although, in his earlier evidence, he had denied that the accident had any effect on his arm and neck problems. He maintained that the 1986 accident had no long term effect on the arm and neck which, while degeneratively worse, produced symptoms similar to those prior to the 1986 accident. Mr Dalgleish acknowledged that he had written to the respondent in March 1991 (T200) relating to his claim for compensation arising from the 1986 accident and disputed that his then problems with arm and shoulders were the result of the 1966 accident. In that letter he stated:
"My pre July 1986 activities e.g. Tennis, Squash, Football, Golf, Running, Gym work as well as many other work activities preclude any such injuries interfering with my daily life. The numbness in my arms and locking of my shoulders only began following the 1986 accident."
He accepted, also, that there were many references at that time to his working up to 20 hours per day prior to the 1986 accident and being actively involved in sport. He said that he last played golf or tennis three years ago and now runs occasionally and coaches an under 10 football team.
Mr Pease examined Mr Dalgleish on 27 March 2000 and provided a report dated 30 March 2000. His opinion, at the conclusion of his report, stated:
"This gentleman suffered serious injuries at the time of the accident described. The second accident appears not to have aggravated his problem.
Details of his treatment and physical findings are defined in the foregoing.
In relation to his cervical spine he has a three level fusion which has left him with a very stiff neck. He has constant pain which is not inconsistent with such an extensive fusion procedure. He may also have suffered a right-sided nerve root or brachial plexus injury which could explain his right arm pain and altered reflex function. It will be necessary for your client to undergo MRI scanning to establish whether or not there was any obvious nerve root injury, his symptoms are not consistent with spinal cord injury.
I suspect that his headaches are emanating from his cervical region despite the fact that palpation of his occiput and posterior structures was normal. There is no evidence of occipital neuralgia, he did not complain of any altered sensation in the region of innervation of the greater occipital nerve.
He almost certainly suffered soft tissue injuries to his right shoulder which has resulted in a significantly reduced range of movement as indicated in the foregoing. He has a reduced range of movement of his elbow as a consequence of soft tissue injuries compounded by adjacent bony injuries.
He injured his right wrist and is now left with a reduced range of movement and well established osteoarthritis. None of these problems will spontaneously resolve nor improve with a passage of time. On the contrary, as your client ages, it is likely that he will suffer from increasing pain, symptoms and disability.
He complains of pain in his right ankle but I was not able to identify any significant abnormality."
In his oral evidence, Mr Pease said that the difficulties Mr Dalgleish had with his neck and arm were the principle limitations on his ability to work. He understood that the injuries sustained in the 1986 accident were not likely to limit that ability to work. He regarded a three level cervical fusion as very significant and something that is rarely done. On the other hand, he was of the view that cervical fusions generally work well and are often symptom free. When details of Mr Dalgleish's pre 1986 work history and medical reports from two general practitioners to the solicitors acting for Mr Dalgleish in the court action following the 1986 accident (T266 and T274) were put to Mr Pease in cross-examination, he agreed that these were inconsistent with the history which he had taken from Mr Dalgleish. He had understood that the 1986 accident had occurred when Mr Dalgleish was stationary, not that Mr Dalgleish had been thrown from his motor cycle while travelling at 60 kms per hour. Mr Pease suggested that it is not uncommon in motor cycle accidents for the obvious injuries such as to the foot and leg in Mr Dalgleish's case, to be treated and trauma to the spine, shoulders, etc not to be recognised. He accepted, from the evidence of reports prepared in relation to the 1986 accident, that, prior to that accident, Mr Dalgleish appeared to be fully functioning and the accident had produced a much greater impact on such functioning than he had understood from the history he had taken.
Mr Shannon examined Mr Dalgleish on 10 April 2000 and provided a report dated 13 April 2000. His report concluded with the opinion that:
"…As a result of his original accident Mr. Dalgleish sustained a severe injury to the cervical spine resulting in a crush fracture of the 5th cervical vertebra and possibly damage to adjacent vertebrae. This ultimately resulted in a cervical fusion and he has a reasonable function in his neck considering the extent of the fusion. He does have some degenerative change at other areas and it is certainly consistent that he would have discomfort, stiffness and headaches which are almost entirely attributable to the original accident.
He does not describe any significant injury to his neck in the second accident although he feels that perhaps his neck is a little worse in recent years.
I think on balance however that the second accident has had little influence on his neck condition.
In regard to his right arm, he sustained a supracondylar fracture which went on to mal union and also resulted in limitation of movement of his elbow.
Forearm factures united in reasonable alignment but have resulted in limitation of forearm rotation and wrist movement.
He has a moderate continuing disability in the right upper limb.
A right ankle injury in the original accident was essentially a soft tissue injury and has not resulted in significant impairment.
He has perhaps minor restriction of subtalar movement.
He would appear to have regained excellent function and worked in the Public Service and according to your file also held down other jobs, in addition to his fulltime clerical work.
He was then involved in a motor cycle accident in which he sustained severe degloving compound fractures of his left foot. He also sustained soft tissue injuries to his pelvis and back but these have not resulted in significant impairment.
He may have aggravated his neck condition but on balance I do not think that the neck condition has been significantly influenced by the second accident.
His work capacity would however have been significantly reduced by the second accident because of inability to stand for long periods or to drive a manual vehicle for long periods.
He would be permanently limited therefore in the performance of physical work although I doubt that the accident has had much influence on his ability to perform clerical work, and indeed he has managed to obtain alternate employment as a masseur which presumably involves a fair amount of standing.
Although there may be some overlap of impairment I think that the impairment in the neck and right arm are almost entirely attributable to the original accident and the impairment in the left lower limb is entirely attributable to the second accident."
In his oral evidence, Mr Shannon accepted that he did not have the full history of the level of activities of Mr Dalgleish prior to the 1986 accident. He had understood that there was no injury in 1986 to the neck or arm and they were only marginally worse after that second accident. He accepted, with details of that 1986 accident, that it would not have done the neck and arm "any good". He was of the opinion that the three level fusion of the cervical spine was significant and, while it was unlikely that the fused area would cause problems, stress would be placed on adjacent levels of the spine leaving them vulnerable to aggravation and deterioration.
It was submitted for the applicant that he is incapacitated for full-time work as a result of the injuries sustained in the motor vehicle accident in 1966. It was said that the injury occurred in the course of and within the scope of his employment being a journey to his home on embarkation leave. It was argued that there was a continuing unbroken incapacity resulting from the 1966 compensable injury which had now deteriorated. Mr Misso submitted that the evidence of any aggravation to the neck, shoulder and arm in 1986 was equivocal and, if there had been such aggravation it was de minimus. It was submitted further that section 17 of the Commonwealth Employees Compensation Act 1930 ("the 1930 Act") does not disentitle the applicant from compensation as a consequence of having received damages from a third party. Mr Misso did not deny that Mr Dalgleish had worked long hours prior to the 1986 accident but argued that he had stoically overcome his ongoing injury problems and had been motivated by family needs. It was said that, currently, he is no longer able to overcome the incapacity caused by the 1966 injuries.
For the respondent it was submitted that the journey in 1966 was unconnected with the employment of Mr Dalgleish and the injury was not compensable under the 1930 Act. It was submitted, further, that section 17 of the 1930 Act results in Mr Dalgleish being ineligible for compensation as a result of receiving damages for the 1966 accident in his common law action. Finally, it was submitted that any current incapacity for work and requirement for ongoing medical treatment and medication are a consequence of the 1986 accident.
There is an inevitable difficulty for an applicant seeking compensation for injuries incurred some 34 years ago, particularly where a further accident occurred some 20 years later involving significant injuries. In one sense, Mr Dalgleish is asking this Tribunal to accept that his present incapacity, arising from problems in his neck and right arm, is the result of the accident in 1966 and unrelated to any other intervening incident.
It is appropriate to deal firstly with the respondent's contention that the journey during which the 1966 accident occurred was not a journey covered by section 9A of the 1930 Act. This section provides:
"9A.—(1.) Where personal injury by accident is caused to an employee while he is travelling to or from—
(a)his place of employment by the Commonwealth (including any school in relation to which sub-section (2) of the last preceding section applies); or
(b)…
the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the accident were an accident arising out of or in the course of his employment.
(2.) In this section 'travelling' means travelling by the shortest convenient route for the journey and does not include travelling during or after any substantial interruption of the journey or any substantial deviation from the route made for a reason unconnected with the employee's employment, attendance at the school or obtaining the certificate, treatment or compensation, as the case may be:
Provided that the Commissioner may, on behalf of the Commonwealth, accept liability, if he considers that in the circumstances of any particular case the nature, extent, degree and content of the risk of accident was not materially changed or increased by reason of any such interruption or deviation."
As I understand the evidence in this case, Mr Dalgleish had been stationed at Casula in New South Wales for some three months completing his final training prior to going to Vietnam. He had been granted final pre-embarkation leave with orders to rejoin his unit in Sydney at the end of that leave and embark on the ship to Vietnam. His home was in Ballarat, Victoria. The accident happened during travel to Ballarat by the most expeditious route. He had ceased his temporary place of abode at Casula. In my view, this was travel contemplated by section 9A. Support for this view is to be found in the case of The Commonwealth v Wright (1956) 96 CLR 536, in particular the comments of Webb J (at page 551):
"And so I think it is a proper inference from the Act that to support a claim for compensation the accident to a soldier must have arisen out of or in the course of his service, which would include travelling on that service to or from a military camp, and when going on leave from the camp or returning to the camp on the expiration of leave; but not otherwise for personal reasons."
At pages 553-554 in that case, Fullagar J said:
"But the conception, which seems implicit in s.9A(2), of a regular journey from a place of abode to a place where the duties of an employment are to be performed is not, generally speaking, appropriate to the case of a member of the defence force. Such members will be commonly found to be stationed in camp or in barracks or in a ship. In effect they live in the place where the duties of their 'employment' are performed: they do not travel regularly to and from their employment. It does not, of course, follow that they are excluded from any benefit under s.9A. They will from time to time go on leave, and return from leave. When they go on leave, they will normally have a destination in view, which may be a final destination or may be only a first destination. When they have departed from the performance of their duties and while they are travelling to that destination, I would think that they are travelling from their employment within the meaning of s.9A. But such a man is not, in my opinion, travelling to his employment unless his immediate purpose in making the journey is to enter upon the duties of his employment."
Several other decisions cited by the respondent related to travel other than that undertaken by a serviceman travelling directly to his home on official leave between two geographically different postings. In this case, I am satisfied that the relevant journey was within section 9A of the 1930 Act.
Section 17 of the 1930 Act, so far as it is relevant to this case, states:
" 17. If an injury in respect of which compensation is payable under this Act is caused under circumstances which appear to create a legal liability in some person other than the Commonwealth to pay damages in respect of the injury –
(a)the employee may take proceedings against that person to recover damages and may also make a claim against the Commonwealth for compensation;
(b)…
(c)where the employee receives both compensation under this Act and damages from that other person, he shall repay to the Commonwealth such amount of the compensation as does not exceed the amount of damages recovered from that person;
(d)…
…"
The respondent sought to rely on an earlier decision of this Tribunal in Re Burt and Comcare, AAT 7578A, 25 August 1993 (unreported). However, that decision was concerned with section 17A of the 1930 Act which is in quite different terms to section 17. Section 17A states (so far as is relevant):
" 17A.—(1.) Except as provided by this Act, an employee shall not be entitled, in respect of personal injury by accident arising out of or in the course of his employment by the Commonwealth, to receive compensation or any payment by way of compensation from the Commonwealth both independently of and also under this Act;
(2.) …
(3.) …
(4.) An employee who recovers damages from the Commonwealth in respect of an injury shall not be entitled to compensation or any payment under this Act in respect of the same injury and any sum received by him under this Act in respect of that injury prior to the award of the damages shall be deducted from the amount of the damages recoverable from the Commonwealth."
In this case, Mr Dalgleish did not recover damages from the Commonwealth but a third party so that section 17A has no application. It is of interest to note that a formal determination was made by the delegate of the Commissioner of Employees' Compensation on 8 May 1969 (T139) which stated:
"Having regard to the provisions of Section 17 of the said Act the said James Anthony Dalgleish is not entitled to further compensation under the said Act unless and until the amount of compensation paid and/or otherwise payable under the said Act exceeds the amount of damages he received."
Clearly, the interpretation of section 17 of the 1930 Act then held was not that which is now proposed by the respondent. It is relevant to note that section 17 requires repayment of any compensation to a maximum of damages recovered. In distinction from section 17A it does not preclude entitlement to compensation. In my view, and given the beneficial nature of the legislation, it should be interpreted in the same way as was done by the delegate in May 1969. However, there is a clear problem in determining a point at which any compensation entitlement exceeds the damages received in December 1968.
The remaining and critical issue is whether the current incapacity of Mr Dalgleish can be attributed to that 1966 accident. In many ways this case is somewhat the reverse of the argument that is dealt with frequently by this Tribunal. In many cases an applicant seeks to argue that an injury is compensable when such injury aggravates a pre-existing vulnerability or injury and that aggravation produces an incapacity or entitlement to compensation. Here, Mr Dalgleish seeks to argue that his incapacity relates to the 1966 injury and any aggravation caused by the 1986 accident does not now contribute to that incapacity. I accept that in seeking compensation and damages for the 1986 accident, it may have been in his interest to maximise the lack of any incapacity prior to 1986 and maximise the effect of the 1986 accident on his subsequent incapacity. However, the uncontradicted evidence was that, prior to the 1986 accident, he worked long hours, regularly doing two jobs and was active in sporting pursuits. He may well have had some ongoing symptoms from the 1966 neck and right arm injuries but they did not appear to have caused any limitations in work, sporting or social capacity nor any significant medical treatment. Mr A. Buzzard, an orthopaedic surgeon, examined Mr Dalgleish on 21 February 1991 and provided a report to the respondent dated 25 February 1991 (T198) in relation to his compensation claim following the 1986 accident. In referring to neck pain, Mr Buzzard referred to headaches and limitation of movement after the 1966 accident but that "the 1986 accident aggravated his neck". Under "arm troubles", Mr Buzzard said "The patient told me 'my arms go to sleep at night'. This has been so since the accident in July 1986. This is worsening." Under "Shoulder troubles" he said:
"The patient told me 'my shoulders lock up during the night'. This has been so since the 1986 accident. He said that he did have such troubles following the first accident of 1966 but to a lesser degree. The patient noted that 'I used to be very fit – I played football and tennis' following the 1966 accident."
What Mr Dalgleish is asking the Tribunal to accept is that his current incapacity would have arisen at this time as a result of the 1966 accident and that any intervening incidents had a nil or, at most, minimal effect on that incapacity. However, it is clear from the evidence of his activities prior to 1986, the claims made by him in relation to compensation and damages in respect of the 1986 accident and medical reports provided in relation to those claims, that the 1986 accident had a very significant impact on his ability to function. Current medical evidence does indicate that the cervical fusion and the right arm and wrist repairs following the 1966 accident were likely to result in limitation of neck movement, headaches, some right arm difficulties and osteoarthritis in the right wrist. However nobody, particularly this Tribunal, can say with any degree of probability that the current incapacity of Mr Dalgleish can be laid at the door of the 1966 accident with minimal contribution from incidents over the succeeding 34 years. While not suggesting that Mr Dalgleish has failed to raise any other possible contribution to his current medical problems, it is clearly possible that some further incident other than the 1983/1984 "whiplash injury" and the major accident in 1986 could have occurred while playing sport or in some other activity during that 34 years. I am not and cannot be satisfied, on the balance of probabilities, that the current incapacity of Mr Dalgleish can be attributed to the 1966 accident so as to result in compensation arising from that injury.
It would appear to follow that compensation would be payable to Mr Dalgleish under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") as a consequence of the 1986 accident. However, section 99 of the 1971 Act limits compensation to such amount as exceeds the amount of damages recovered. There is no evidence of what amount, if any, of any entitlement could be available pursuant to that limitation.
It follows that the decision under review should be affirmed.
I certify that the nineteen (19) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Signed: .....................................................................................
Personal AssistantDate of Hearing 23 August 2000
Date of Decision 16 October 2000
Counsel for the Applicant Mr P. Misso
Solicitor for the Applicant Foster Hart
Counsel for the Respondent Mr K. MacFarlane
Solicitor for the Respondent Sparke Helmore
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