DARREN TREBILCO and MILITARY REHABILITATION and COMPENSATION COMMISSION

[2009] AATA 396

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 396

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1022, 5090, 2008/2045

VETERANS' APPEALS DIVISION		)
Re		DARREN TREBILCO

Applicant

And MILITARY REHABILITATION and COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date1 June 2009  

PlaceBrisbane

Decision In each application the Tribunal affirms the decision under review.

.............Signed.................

Deputy President

CATCHWORDS

COMPENSATION – right ankle – claimed that injury occurred during physical training session – no contemporaneous medical notation – medical evidence of current condition rejected due to unfounded factual basis – headaches/vertigo – claimed that injury began after suffering injuries in rock-fall during training – no contemporaneous medical notation – medical evidence of current condition rejected due to unreliable factual basis -  decisions under review affirmed.

Safety Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

1 June 2009   Deputy President P E Hack SC    

Introduction

1.The applicant, Mr Darren Trebilco, enlisted in the Australian Regular Army in 1994 when he was 17 years of age. He was discharged in November 2006.

2.In each of the three proceedings before the Tribunal the issue is whether the respondent, the Military Rehabilitation and Compensation Commission, is liable to pay compensation to Mr Trebilco for conditions described as “headaches/vertigo” and “right ankle injury” in accordance with the Safety Rehabilitation and Compensation Act 1988 (Cth). Mr Trebilco contends that these conditions were caused by his service in the Regular Army; the Commission contends that they were not.

Background

3.I propose to first set out some matters of fact that I do not understand to be controversial and which are, in the main, taken from contemporaneous records. Mr Trebilco enlisted in 1994. After his initial training he was assigned to what was then the Survey Corps. That Corps was subsequently amalgamated into the Royal Australian Engineers. In May 1995 Mr Trebilco was posted to the Land Warfare Centre at Canungra.

4.In January 1998 Mr Trebilco was posted to the SAS Regiment in Perth. He remained attached to that Regiment until March 2002 when he was posted to the 7 Signals Regiment in Toowoomba. Finally, in December 2003, he was posted to a joint service facility at Williamtown where he remained until his discharge on medical grounds in November 2006.

5.Mr Trebilco says, and I accept, that prior to his enlistment he was very fit and heavily engaged in a number of vigorous physical activities. He maintained, and improved, his fitness levels during the early part of his Army service because he wanted to join the SAS Regiment, a unit with notoriously high standards of physical fitness and endurance.

6.The first controversial incident during Mr Trebilco’s Army service occurred, according to Mr Trebilco, on 1 March 1996[1]. Mr Trebilco says that on that day he was participating in a physical training session at Canungra. It involved undertaking a cross-country course with a full pack, including ammunition boxes and camouflage nets. Mr Trebilco ran down a slope to a creek bed and up the opposite slope. As he ascended the slope his right ankle “rolled out” and he felt a sharp pain. He paused for a few seconds but then kept going. He did not seek medical attention but instead self-medicated with heat, ice and pressure bandages.

[1]        The date comes from a letter from Mr Trebilco’s solicitors to the Commission dated 18              January 2008; p. 92 of Exhibit 3.

7.It is relevant to note, at this juncture, that there is an entry in Mr Trebilco’s medical records for 1 March 1996. It describes him as complaining of pain to his left hip. The clinical notes record an examination of his legs and feet sufficient to note that he had flat feet. No record was made on any ankle pain. Clinical notes over the succeeding weeks show frequent attendances for hip pain and physiotherapy and notes of increasing distances run by Mr Trebilco. Thus, on 9 April 1996, it is recorded that Mr Trebilco ran 9 kilometres without problems but there is no reference in the weeks after 1 March 1996 to any ankle problem.

8.The next relevant event occurred on 26 November 1997. Mr Trebilco and other soldiers were involved in abseiling on a cliff face at Canungra. Mr Trebilco was at the base of the cliff when he was struck by falling rocks loosened by soldiers above him. Mr Trebilco gave a somewhat florid account of the size of these rocks and their impact on him. I do not intend any criticism of him in saying this and I do not doubt the incident was quite terrifying. But for that reason and because of Mr Trebilco’s limited opportunity to observe what may have struck him I consider it best to regard the consequence to him as the most accurate guide to the way in which Mr Trebilco was struck. The force was sufficient to split the safety helmet that Mr Trebilco had been wearing.

9.Mr Trebilco was taken to the Canungra Army Medical Centre. The notes taken on his admission at 1.10pm record that his memory was “uncertain”, that Mr Trebilco did not think he lost consciousness but was “unsure of detail” and that he remembered the trip to the medical centre. On examination he was found to be conscious and cooperative. There was no obvious head wound however Mr Trebilco had a laceration to the back of his neck, a large bruise to his shoulder and some pain with pressure to his shoulders and upper spine. Subsequent observations over the next four hours showed him to be fully conscious and alert.

10.Mr Trebilco was administered the drugs pethidine and maxolon and remained in the medical centre overnight. At 6am the following day he was described as having “rested comfortably” although in considerable pain when moving his left arm. In his evidence Mr Trebilco said that he had no recollection between seeing the rocks about to fall on him until he woke up in hospital the following day.

11.In April 1998, after his transfer to the SAS Regiment in Perth, Mr Trebilco attended the Emergency Department of the Sir Charles Gairdner Hospital. He was diagnosed as suffering from benign positional vertigo and prescribed Stemetil.

12.Mr Trebilco underwent his periodic Army medical examination in October 1998 and was classified as fit. No abnormalities were noted regarding his right ankle or headaches or vertigo. Later that month Mr Trebilco injured his left ankle during physical training. The Regimental Aid Post (RAP) notes record that his left foot “hyper flexed in plantar flexion”.

13.In July 1999 Mr Trebilco’s unit was posted to the Solomon Islands. Prior to his departure he underwent a medical exam which classed him as fully fit for overseas duty.

14.The next recorded instance of vertigo was in April 2000. It was noted that Mr Trebilco had a headache across his forehead during the episode. He was referred to Dr Ian Wallace, an ear, nose and throat specialist. His report of 12 April 2000 gave this history:

“Darren has had 3 episodes of imbalance with the first one occurring in the middle of last year and two in the past 2 weeks. Each attack has lasted for about 3 days and he feels imbalance with nausea and headache.”

Dr Wallace diagnosed recurrent vestibulopathy or benign recurrent vertigo. A subsequent MRI was normal which Dr Wallace said confirmed his impression of recurrent vestibulopathy.

15.Mr Trebilco passed a further medical examination as fully fit in June 2000.

16.In May 2002 Mr Trebilco presented at the RAP complaining of an ankle strain. His evidence was that it was his right ankle about which complaint was made. The initial entry on the medical entry could be read as “R” indicating right but my impression, confirmed by the later and clearer entry on 30 May 2002, is that the recording was of a left ankle sprain.

17.Mr Trebilco had a further vertigo attack in January 2004. He was recorded as having taken Stemetil tablets with a “use by” date of November 2001, consistent with a supply prescribed following the attack in April 2000.

18.In April 2005 Mr Trebilco complained of “ongoing dull pain” in his right ankle from an injury said to have occurred “2 yrs ago”. There was a further complaint of pain to the right ankle in late 2005.

19.Mr Trebilco lodged a claim for compensation in October 2005[2]. The claim described the “injury, disease or illness” as “neck, shoulders, vertigo, headaches”. The Commission was requested to admit liability for those conditions and to assess compensation pursuant to ss 24 and 22 of the Act.

[2]        The claim is dated 22 April 2005 and was lodged under cover of a letter from Mr Trebilco’s        solicitors dated 3 October 2005.

20.On 2 August 2006 the Commission determined that Mr Trebilco had suffered an injury arising out of, or in the course of, his service which was described as a “small laceration back of neck and a large haematoma under abrasion over the left infraspinatus muscle”. The claim, so far as it related to “headaches and vertigo” condition was not accepted on the basis of a report by Dr Keith Lethlean, a consultant neurologist, which concluded that service has not caused the conditions.

21.Thereafter, by letter dated 6 September 2006, the solicitors for Mr Trebilco requested a reconsideration of the 2 August 2006 determination. The letter said, in its operative part:

“We ask that liability be accepted for our client’s Headaches/Vertigo condition”.

22.On 2 February 2007 the Commission affirmed on reconsideration the decision to reject liability for the “headaches/vertigo” conditions. This decision is the subject matter of application 2007/1022.

23.On 8 August 2007 Mr Trebilco’s solicitors requested the Commission to reconsider the question of Mr Trebilco’s entitlement to compensation for permanent impairment i.e. pursuant to ss 24 and 27 of the Act, from the headaches/vertigo condition. This was done and the Commission determined on 12 September 2007 “that no payment can be made under Sections 24 and 27 of the Act for the conditions of headaches or vertigo”. That decision was affirmed on reconsideration on 9 October 2007. That decision is the subject of matter of application 2007/5090.

24.Mr Trebilco lodged a claim for compensation with respect to his right ankle in October 2007. The claim form did not identify a date of injury however the claim from was submitted with a report of Dr Graeme Griffith which referred to Mr Trebilco reporting “repeated episodes of pain in his right ankle in 2003”. The Commission sought clarification of this aspect and were advised by Mr Trebilco’s solicitors that:

“We instructed Dr Griffiths [sic] that our client’s right ankle injury was sustained on 1 March 1996 during PT activity training. The ankle was then subject to further aggravations through the normal rigours of service during his period of enlistment”.

25.On 21 January 2008 the Commission determined that there was no liability to compensate Mr Trebilco for his right ankle condition. That determination was affirmed on reconsideration on 19 March 2008 and is the subject of application 2008/2045.

The medical evidence – right ankle

26.I have the benefit of evidence from Dr Griffith, a consultant surgeon, and from Dr Peter Steadman, a consultant orthopaedic surgeon.

27.Dr Griffith is a surgeon who appears to have a limited clinical practice and a particular interest, since 1991, in medico-legal consulting. He saw Mr Trebilco regarding a range of complaints in October 2006. He notes, regarding Mr Trebilco’s right ankle:

“He reports repeated episodes of pain in his right ankle in 2003 also attributed to general physical demands of his service employment. A scan was negative. There is tenderness over the lateral ligaments. He rates the pain as 5-7/10”.

Dr Griffith found no dorsiflexion in the right ankle and tenderness in the lateral collateral ligaments of that ankle.

28.Dr Griffith concluded that Mr Trebilco suffered from

“1. Recurrent sprains of the lateral collateral ligament – inversion injury

2. Recurrent right ankle arthralgia

3. Loss of active and passive extension of the right ankle joint (N=20).”

These were, he said, conditions of gradual onset during service and recurrent trauma.

29.Dr Steadman is an orthopaedic surgeon. He saw Mr Trebilco on 18 August 2008. In contradistinction to Dr Griffith he found increased dorsiflexion in Mr Trebilco’s ankles. He put the range at 45-50°. He undertook tests that demonstrated objectively the absence of any evidence of ligament instability on either side and the presence of a strong ligament with a solid end point. The results of an ultrasound examination, and MRI and a bone scan were all normal.

30.Dr Steadman concluded that:

“Mr Trebilco has no physical condition in his right ankle of any substance based upon the objective investigations.”

He was of the further opinion that Mr Trebilco’s condition was “most likely a non-physical condition.”

Mr Trebilco’s evidence – right ankle

31.Apart from the history of the incident, already recounted, Mr Trebilco said little regarding his right ankle. He said that it troubled him throughout his career and that he had “self-medicated” the injury. He had been unwilling to disclose the fact of the injury during his career because it might have prevented him from obtaining a posting to the SAS Regiment or from retaining that position once he had obtained it.

The ankle, he said, continues to cause him paid and creates difficulties in walking.

Conclusions – right ankle

32.I am not satisfied that Mr Trebilco suffers from any injury to his right ankle that is attributable to his service in the Regular Army, indeed I am not satisfied that he suffers from any physical injury to his right ankle. There is no recorded history of any injury at the time where he asserts that he was injured. The medical records thereafter are inconsistent with the notion that he sustained an ankle injury in March 1996. It is inconceivable that Mr Trebilco could have suffered from an injury in March 1996 that could continue to affect him to this day without there being any record in the extensive Army medical notes beyond the few references, already noted, to a right ankle injury in 2005.

33.Moreover the RAP notes suggest that Mr Trebilco was not reluctant to report seemingly minor medical problems. That seems inconsistent with his explanation for the absence of references to his right ankle problems. I am simply unable to accept Mr Trebilco’s evidence on critical matters; I regard him as an unreliable historian.   

34.I am unable to accept the opinion of Dr Griffith because the factual bases upon which his conclusions were based are shown to be unfounded in two material respects. First, he found that Mr Trebilco had no dorsiflexion in his right ankle. Whilst I accept that that is the result of his measurement I do not accept that it evidences a genuine result on Mr Trebilco’s part given the evidence of Dr Steadman, that I do accept, that he subsequently found 45° to 50° of hyper flexion. Moreover, there is no history given by Mr Trebilco, nor is any apparent from the material, that Mr Trebilco suffered recurrent sprains of the lateral collateral ligament.

35.I prefer to accept the evidence of Dr Steadman, an orthopaedic surgeon, that Mr Trebilco has no physical condition of any substance in his right ankle.

36.In circumstances where I am not satisfied of the existence of any injury to Mr Trebilco’s right ankle arising out of his employment I would affirm the decision of the Commission in application 2008/2045.

The medical evidence – headaches/vertigo

37.I heard evidence, and had reports from four consultant neurologists – Dr Keith Lethlean, Dr Ivan Lorentz, Dr Don Todman and Dr John Cameron.

38.Dr Lethlean saw Mr Trebilco in February 2006. In his report of 3 March 2006 he recorded a history given to him by Mr Trebilco of headaches commencing about a month after the rock fall. He continued:

“His headaches continued and some 6-12 months after injury he developed giddiness.”

He reached the conclusion that Mr Trebilco’s headaches were migraineous in nature and caused the attacks of vertigo. He concluded that the conditions were not caused by Mr Trebilco’s service and that Mr Trebilco would have suffered from the condition regardless of his service.

39.Mr Trebilco was seen by Dr Lorentz in November 2006. The history recorded in his report of 13 November 2006 was as follows:

“Mr Trebilco states that since the accident he has been suffering from headaches and minor giddiness which is gradually getting worse. He is unable to give any details about the early onset of headaches and vertigo, and it appears that these have mainly occurred since the year 2000.”

Dr Lorentz noted inconsistencies in Mr Trebilco’s presentation and his complaints. He noted that post-traumatic benign positional vertigo usually occurs immediately after a head injury, continues in a severe form for several weeks and then gradually improves. Dr Lorentz concluded that Mr Trebilco suffered from migraine headaches and migraineous vertigo which were unrelated to his service.

40.Dr Todman, who saw Mr Trebilco in September 2007, took a history of persistent headaches and episodes of dizziness occurring after the rock fall. He concluded that Mr Trebilco’s ongoing symptoms were directly related to that incident. In his oral evidence he explained that he did not regard the symptoms reported to him as satisfying the criteria for migraines. He emphasised the need for a close temporal relationship between an incident and symptoms of headache and vertigo before it might be concluded that there was a causal relationship between the incident and the conditions. He considered that a delay of six months in the onset of symptoms would make it unlikely that there was a causal relationship.

41.Dr Cameron saw Mr Trebilco in November 2007. He reported a history of headaches following the rock fall and vertigo “possibly a couple of months after” the rock fall. He also observed inconsistencies in Mr Trebilco’s presentation. He concluded that Mr Trebilco’s headaches were “a combination of muscular contraction and migraine headaches” that were unrelated to the rock fall. He regarded the interval between the rock fall in November 1997 and the vertigo attack in April 1998 as excluding a causal relationship between the two. He said that he would have expected vertigo attacks immediately, that is, within days, had there been a relationship.

42.Mr Trebilco underwent an electronystagmographic evaluation in September 2008. It showed a 62% canal paresis of the right ear, denoting a lesion of the right horizontal semi-circular canal or its afferent pathway. Dr Todman regarded this finding as supportive of the conclusion that Mr Trebilco suffered traumatic vertigo however the finding does not detract from the absence of any evidence of vertigo immediately after the rock fall.

Mr Trebilco’s evidence

43.For his part Mr Trebilco said that he started having minor and major attacks of headaches straight after the rock fall. He described the vertigo attack of April 1998 as the first “major attack” and said that prior to that he had had “on and off dizzy spells”. He regarded those dizzy spells as minor and not requiring any medical treatment as the dizziness would last for two to four hours.

44.For reasons that will become apparent I need not refer to the balance of Mr Trebilco’s evidence regarding the development and consequences of the headaches. It is sufficient for present purposes to concentrate upon Mr Trebilco’s evidence regarding the onset of the headaches and vertigo. There is much in the material that leads me to conclude that I can place no reliance upon that evidence.

45.First, there is the consideration that Mr Trebilco’s Army medical records are devoid of any complaint of headaches and vertigo at, or proximate to, the date of the rock fall. The histories provided to the various neurologists vary to some degree but importantly no history given shows a complaint of headaches or vertigo (however described) immediately following the rock fall when, on the medical evidence, one would expect such a complaint were there to be a relationship between the rock fall and the continuing conditions. The clinical notes of the period after the rock fall make no mention of complaints of headaches or dizziness.

46.Moreover there is a deal of inconsistency in the history given by Mr Trebilco in connection with his complaint of vertigo. The history recorded by Dr Wallace in April 2000 of “3 episodes of imbalance with the first one occurring in the middle of last year and two in the past 2 weeks” is significantly at odds with the account given by Mr Trebilco in his evidence.

47.There is evidence in a variety of settings of inconsistency in Mr Trebilco’s presentation to medical practitioners. Dr Lorentz and Dr Cameron both noted that Mr Trebilco’s neck movements appears to be lessened during examination compared to much freer movements at other times.

48.In the result I prefer to base my conclusions on contemporaneous records rather than Mr Trebilco’s evidence. It may well be that Mr Trebilco is genuine in his belief that it was the rock fall that was the cause of his ailments but I consider that that belief is based upon ex post facto reconstruction rather than any genuine recollection.

Conclusions – headaches/vertigo

49.In my view the evidence of Drs Lethlean, Lorentz and Cameron ought be preferred to that of Dr Todman. I reach that conclusion because I regard the histories used by them in forming their opinions as more reliable and more consistent with the medical records from the time. All neurologists stressed the importance of early compliant. Dr Todman was given a history of early complaint of headaches and dizziness following the injury but that finds no support in the other histories given nor in the clinical records of the time. Naturally, Dr Todman relied upon the history given to him to reach the views he expressed. But because I regard that history as unreliable I regard his conclusion, based on that history, to also be unreliable.

50.It follows that I accept the conclusions of Drs Lethlean, Lorentz and Cameron that there is no connection between Mr Trebilco’s service and his complaints of headaches and vertigo. The result is that I would then affirm the decisions in application 2007/1022 and 2007/5090.

51.I should deal with one particular criticism made by Ms Scott-McKenzie of the diagnosis made by Drs Lethlean, Lorentz and Cameron of migraineous headaches. By reference to a document published by the International Headache Society, accepted as authoritative by neurologists generally, she submitted that those doctors were in error in that diagnosis. That was so, she submitted, because the diagnostic criteria for a migraine headache included a reference to headaches with “unilateral location”. It was said that Mr Trebilco’s headaches did not answer that description and thus a diagnosis of migraine headaches ought not to have been made.

52.There are many difficulties in accepting this argument, not the least of which is that it ignores the element of clinical judgement and treats the task of diagnosis as one of simply matching signs and symptoms to a checklist. But, in addition, it seems to me that the argument must fail even if it were accepted at face value. The term “unilateral” is defined in the guide as:

“On either the right or left side, not crossing the mid line. Unilateral headache does not necessarily involve all of the right or left side of the head, but may be frontal, temporal or occipital only”

[emphasis added].

The headaches described by Dr Cameron, in particular, of Mr Trebilco complaining of headaches in the forehead or above the neck seem to me to plainly answer the description of unilateral.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................Signed...............................................
  Melissa Hamblin, Associate

Dates of Hearing  5 - 6 May 2009
Date of Decision  1 June 2009
Counsel for the Applicant         Ms S Scott-McKenzie
Solicitor for the Applicant          Slater and Gordon
Counsel for the Respondent     Mr C J Clark
Solicitor for the Respondent     Sparke Helmore