Dalgrin and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2020] AATA 5475

Dalgrin and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2020] AATA 5475 (19 October 2020)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2018/3361 and 2018/3498

Re:Ricky Terence Dalgrin  

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Member Andrew George

Date:19 October 2020

Place:Darwin

The Tribunal:

(a)sets aside the decision of the delegate of the Respondent in file numbered 2018/3498 dated 28 August 2017 that denied liability for compensation for the Applicant’s claimed condition of a left clavicle fracture;

(b)substitutes a decision that the Applicant suffered or suffers from a left clavicle fracture that arose out of, or in the course of, his Defence service;

(c)sets aside the decision of the delegate of the Respondent in file numbered 2018/3361 dated 28 August 2017 that denied liability for compensation for the Applicant’s claimed condition of a right ulna fracture;

(d)substitutes a decision that the Applicant suffered or suffers from a right ulna fracture that arose out of, or in the course of, his Defence service; and

(e)remits these matters to the Respondent for all necessary action.

...............[sgnd].........................................................

Member Andrew George

CATCHWORDS

VETERANS’ ENTITLEMENTS – compensation – injury or disease – arise out of or in the course of Defence service – induce or encourage the employee to engage in activity -  expectations of a solider – set aside and substituted.

LEGISLATION

the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1998 (Cth)

CASES

Comcare v PVYW [2013] 250 CLR 246

Turner-Dauncey and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 551

REASONS FOR DECISION

Member Andrew George

19 October 2020

BACKGROUND

1. Mr Ricky Terence Dalgrin (the ‘Applicant’), aged 56 years, originally enlisted in the Australian Army on 28 April 1981. He was allocated to the Royal Australian Army Medical Corps and variously served on both a full-time and a part-time basis. The Applicant was posted to several units in the 1980s and 1990s including the 7^th Field Ambulance, the Special Air Service Regiment (‘SASR’), 16^th Battalion Royal Western Australian Regiment and the Pilbara Regiment. The Applicant was awarded a Soldier’s Medallion for Exemplary Service on 28 March 1995 and was substantively promoted to Sergeant on 6 June 1995. The Applicant discharged on 16 November 1998.[1]

   [1] Exhibit R2.

2. The Applicant re-entered the Army on 7 February 2009. It is the Applicant’s first period of service, rather than this second period, that is of relevance to these proceedings.

   ISSUES

3. There are two decisions under review in these proceedings determining that the Respondent is not liable to pay compensation to the Applicant under s.14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1998 (Cth) (‘DRCA’). Both reviewable decisions are dated 28 August 2017, regarding a:

   (a)left clavicle fracture, in file number 2018/3498; and

   (b)right ulna fracture, in file number 2018/3361.

4. The Applicant has claimed that these fractures were concurrently sustained in March 1990 in circumstances where the applicant’s clavicle and right ulna injuries occurred “Head first @ 50km per hour into the road push bike accident – whilst training for SAS.”[2] The Applicant has also claimed that medical treatment following the right ulna injury was obtained in the form of “Surgery at 1 Mil[itary] Hospital Yeronga. Pinned & Remove. 1 year later.”[3]

   [2] T10/52.

   [3] T11/53.

5. The material part of the delegate’s decision regarding the Applicant’s left clavicle fracture, in file number 2018/3498, reads:[4]

   I am satisfied you sustained a left clavicle fracture condition in March 1990. Your medical service records state you first sought medical treatment in respect of a left clavicle fracture at this time.

   I am not satisfied that your left clavicle condition arose out of, or in the course of, your service. A medical attendance and treatment report dated 3 October 1990 states that your left clavicle fracture was not service related.

   [4] T1/24.

6. The material part of the delegate’s decision regarding the Applicant’s right ulna fracture, in file number 2018/3361, reads:[5]

   I am satisfied you sustained a right ulna fracture condition on or before 3 October 1990. A medical attendance and treatment report from that date indicates you sought treatment for a right ulna fracture condition.

   I am not satisfied your right ulna fracture arose out of, or in the course of, your service. The medical attendance and treatment report dated 3 October 1990 suggests you sustained a right ulna fracture condition at the same time you sustained a left clavicle fracture (which was not sustained in service related circumstances). There is insufficient evidence to establish your right ulna fracture condition arose out of, or in the course of, your service.

   [5] T1/29.

7. There are two questions for the Tribunal arising from the material outlined above:

   (a)Has the Applicant has suffered an ‘injury’ or ‘disease’ for the purpose of the DRCA? If the answer to this is ‘yes’, then;

   (b)Did the Applicant’s conditions arise out of, or in the course of, his Defence service within the meaning of ss.5A and 14 of the DRCA?[6]

   [6] Respondent’s Statement of Issues, Facts and Contentions [2.1].

   Has the Applicant suffered an ‘injury’ or ‘disease’ for the purpose of the DRCA?

8. There is a plethora of medical evidence before the Tribunal, which is to be expected in a matter such as this. Ultimately, however, only a small number of medical documents are relevant.

9. The Tribunal notes that a radiological report from Fremantle Hospital dated 28 March 1990 states:[7]

   LEFT CLAVICLE       25.3.90           Series 2

   There is a slightly comminute fracture of the shaft of the clavicle at the junction of the middle and lateral thirds with downward displacement of the lateral fragment. At least two smaller intermediate fragments are present one of which is lying obliquely.

   RIGHT ELBOW         25.3.90           Series 3

   There is a fracture of the head and neck of the radius, involving the articular surface of the head. There is only minor displacement of the fragments. An effusion which is likely to be a hemarthrosis is present in the elbow joint.

   [7] T7/42.

10. A later radiological report from Fremantle Hospital dated 19 April 1990 relevantly stated:

    LEFT CLAVICLE       Series 5          18.4.90

    Comminuted midshaft fracture position does not show any obvious change compared with 25 March. No callus can yet be seen.

    RIGHT ELBOW

    Fracture of the radial heads does not show any significant displacement and joint effusion seems to have been resolved.

11. The Tribunal accepts the contents of these radiological reports from Fremantle Hospital as being accurate.

12. The Tribunal has been directed to other medical documents of note relating to the left clavicle fracture. These are a report from Dr Buick of 2 October 1990,[8] a medical attendance and treatment report dated 3 October 1990,[9] a patient referral and report dated 3 October 1990,[10] and an operation note of Mr Schmidt dated 9 October 1990.[11] From these documents, the Tribunal is satisfied that the Applicant underwent open reduction internal fixation for his left clavicle fracture at Darwin Private Hospital following the referral of a military medical officer.

    [8] T38/206.

    [9] T38/207.

    [10] T38/208.

    [11] T38/212.

13. The Tribunal has no evidence before it to support the Applicant’s claim of receiving surgery for his right ulna injury at 1 Military Hospital in Yeronga.

14. On the evidence before it, the Tribunal is satisfied that the Applicant has suffered an ‘injury’ or ‘disease’ for the purpose of the DRCA, namely a left clavicle fracture and a right ulna fracture in March 1990.

    Did the Applicant’s conditions arise out of, or in the course of, his Defence service within the meaning of ss.5A and 14 of the DRCA?

15. The accuracy of the medical attendance and treatment report dated 3 October 1990 is central to the Respondent’s case (the ‘treatment report’). The treatment report is a brief document. It notes that the Applicant was serving in the Army Reserve. It notes that the Applicant’s left clavicle injury occurred whilst performing civilian sport and was not work-related. Indeed, the medical officer, likely a Surgeon Lieutenant Moore RAN, annotated ‘Not service related’. It is the treatment report that the Respondent relied upon to refuse liability for both the Applicant’s left clavicle fracture and a right ulna fracture.

16. The Applicant was cross-examined on the accuracy of the treatment report. The Applicant gave evidence to the extent that the treatment report was falsified. The Respondent’s cross-examination was to the effect that for an Australian Defence Force (‘ADF’) medical officer to falsify such a document without any evidence of a motive is unbelievable. The Tribunal agrees with the Respondent on this point. The Tribunal is satisfied that the treatment report was an accurate representation of the belief of Lieutenant Moore RAN at the time that document was made.

17. The Tribunal has spent much time considering the extent to which the treatment report should be accepted at face value. Indeed, this matter largely turns on the accuracy of the report. The parties, and therefore also the Tribunal, are all at a forensic disadvantage that the report in now three decades old and Lieutenant Moore RAN was not a witness. Indeed, even if he were a witness then he could not reasonably be expected to give reliable evidence on a minor routine medical examination three decades ago.

18. The Tribunal has considered that Dr Buick consulted with the Applicant regarding his left clavicle having been referred by an Army Medical Officer at Larrakeyah Barracks.[12] The Tribunal has also considered that Lieutenant Moore RAN referred the Applicant to Mr Schmidt on 3 October 1990 and was seemingly aware that the Applicant was admitted to, and received, surgery for his left clavicle six days later.[13] This evidence lays a pall over the evidence that the Applicant’s injuries were ‘Not service related’. It does not necessarily follow that the ADF should treat the Applicant’s left clavicle fracture if it did not arise out of, or in the course of, the Applicant’s Defence service. This is particularly so given the Applicant’s Army Reserve status at the time of treatment.

    [12] T38/206.

    [13] T38/208, 212.

19. The Tribunal places weight on the Applicant’s contemporaneous joining instructions for SASR Selection Course dated 22 October 1990. The Applicant had earlier passed a Selection Board interview in about August 1990.[14] A material paragraph of the joining instructions reads:[15]

    Let me emphasize the need for you to prepare yourself adequately for the Course, mentally as well as physically. I suggest that you follow the physical programme that was supplied during the Selection Board interview, because it is known to work – and work well. Revision of all your basic military skills is also worthwhile.

    [14] Transcript/35.

    [15] R5/2.

20. The Respondent’s cross-examination of the Applicant was to the effect that he injured his left clavicle and right ulna before attending the Selection Board interview, and indeed before he was successfully nominated for that Selection Board interview by his Adjutant on 1 August 1990.[16] The Tribunal accepts this chronology, but also notes the Applicant’s evidence under cross-examination as follows:

    I appreciate probably not being given total approval to go and to be a top fit soldier in the Australian Army but it shows in the efforts that the end effort of where I’ve achieved and what I have got to, but that’s the initiative and that’s all those core strengths that’s you know, is required of a soldier, you know, we don’t stand there and wait to, you know, go to attention, there’s normally a precautionary and then the executive that’s given out, so the precautionary is recruiting, “We’re looking for the top soldiers.  If you want to get there you might as well start training now”.  That’s how they recruit, right?  Once you get the joining instructions you’re halfway there.[17]

    [16] Transcript/36; R2.

    [17] Transcript/54.

21. The Tribunal notes that the vernacular ‘precautionary’ and ‘executive’ used by the Applicant are an analogy to drill commands, both usually given on the pace of the left foot. The precautionary is a warning of an order to follow, whilst the executive is the order itself. The Tribunal accepts the Applicant’s evidence that the receipt of joining instructions, or panelling for a Selection Board interview, are analogous to an ‘executive’ drill order. The Army expects a “top fit soldier”, or a soldier who is later recognised for ‘Exemplary Service’, as the Applicant was, to prepare themselves for their tasks ahead. This is consistent with the SASR Selection Course joining instructions, which “… emphasize the need for you to prepare yourself adequately for the Course, mentally as well as physically.”[18] Accordingly, the Tribunal is satisfied that the Applicant’s left clavicle fracture and right ulna fracture in March 1990 were caused whilst he was training for the forthcoming stages of SASR selection.

    [18] R5/2.

    CONCLUSION

22. The Respondent has relied upon two cases. The second of these relates to a surfing sporting injury and its context is far removed from that of a soldier training for SASR selection,[19] minimising its assistance. Nevertheless, that case relies upon Comcare v PVYW [2013] 250 CLR 246 at [36] which posits the central question to this case: “When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?” On balance, and considering the findings already made regarding the expectations of a soldier training for SASR selection who is later recognised for ‘Exemplary Service’, the Tribunal is satisfied that the answer in this case is ‘yes’.

    [19] Turner-Dauncey and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 551 (29 July 2016).

    DECISION

23. The Tribunal:

    (a)sets aside the decision of the delegate of the Respondent in file numbered 2018/3498 dated 28 August 2017 that denied liability for compensation for the Applicant’s claimed condition of a left clavicle fracture;

    (b)substitutes a decision that the Applicant suffered or suffers from a left clavicle fracture that arose out of, or in the course of, his Defence service;

    (c)sets aside the decision of the delegate of the Respondent in file numbered 2018/3361 dated 28 August 2017 that denied liability for compensation for the Applicant’s claimed condition of a right ulna fracture;

    (d)substitutes a decision that the Applicant suffered or suffers from a right ulna fracture that arose out of, or in the course of, his Defence service; and

    (e)remits these matters to the Respondent for all necessary action.

I certify that the preceding twenty-four (23) paragraphs are a true copy of the reasons for the decision herein of Member A George.

-----------[sgnd]-----------------------------
Administrative Assistant Legal

Dated: 19 October 2020

Date of hearing:	4 March 2020
Applicant	In person
Advocate for the Respondent:	Mr Ben Dube, Sparke Helmore