Dean and Comcare
[2003] AATA 606
•27 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 606
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/54
GENERAL ADMINISTRATIVE DIVISION )
Re LARRIE JAMES DEAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr EK Christie, Member Date27 June 2003
PlaceBrisbane
Decision The Tribunal decides to affirm the decision under review. This means Mr Dean's application for review is unsuccessful. ...................(Sgd).....................
EK Christie
Member
CATCHWORDS
COMPENSATION - Commonwealth employees - whether cervical spine/headache condition caused by military employment - proof of causation and divergent medical opinion
Safety Rehabilitation and Compensation Act 1988 ss 4, 14
Compensation (Commonwealth Government Employees) Act 1971 ss 29(1)
Briginshaw v Briginshaw (1938) 60 CLR 336
Dahl v Grice [1981] VR 513
EMI (Australia) Ltd v Bes (1970) 2 NSW 238
McDonald v Director-General of Social Security (1984) 1 FCR 534
O’Neill v Commonwealth Banking Corporation (1987) 13 ALD 234
Re ACT Department of Health and Nikolovski (AAT Decision 10826, 27 March 1996)REASONS FOR DECISION
27 June 2003 Dr EK Christie, Member 1. This is an application by Larrie Dean to review a decision made by the respondent on 23 November 2001 in which it was determined that liability did not exist for intermittent cranio-cervical headaches and neck pain.
2. In making this determination, the Manager Reconsideration [Ian McIver] made the following conclusions in relation to the expert medical opinion central to the question of liability:
“In Dr Martin’s opinion, he considers that you suffer from mild multi-level degenerative disc disease involving the cervical spine and that your service was not the principal cause of your condition. Further that you would have contracted the condition regardless of your service. Dr Martin also considered that no further treatment was necessary.
Dr Martin’s report comprehensively outlines the history of your condition, reviews relevant CT scans and x-ray reports and is the most recent. I have considered Dr Parson’s opinion, as well as the other medical evidence on your file and Dr Martin’s opinion. I have also taken into account that Dr Parsons’ opinions were considered by Dr Martin. On balance I prefer Dr Martin’s opinions to that of Dr Parsons as to the likely cause of your condition and whether it is service related.” (T20, Folio 83)
3. At the hearing the applicant was represented by Mr P Rashleigh of Counsel. The respondent was represented by Ms E Ford of Counsel. The applicant called Dr N Saines (a Neurologist) and Dr T Parsons (an Orthopaedic Surgeon) to provide expert opinion evidence. Dr B Martin provided expert opinion evidence on behalf of the respondent.
4. The Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) and the various documents tendered by the parties.
Facts
5. The general facts may be stated briefly. Mr Dean is now aged 40. He enlisted in the Australian Armed Forces on 3 June 1980 and was voluntarily discharged on 21 July 2000. After a six month absence he re-enlisted with Army aviation at Oakey.
6. Mr Dean lodged a claim for compensation dated 7 August 2000 in relation to his neck and associated headaches stemming from an injury sustained in February 1994 while playing softball.
Issues in Dispute
7. There were three issues for the Tribunal to decide:
(a)whether Mr Dean’s cervical spine/headache condition was caused by his military employment pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”);
and, depending on such determination;
(b)whether the Tribunal had the jurisdiction to determine Mr Dean’s claim for “permanent impairment”; and
(c)whether section 53 of the SRC Act applies in the factual circumstances of the application for review.
Examination of Evidence
Larrie James Dean (Applicant)
8. Mr Dean said that he sustained an injury to his neck around February 1994 whilst playing in an inter-unit softball competition. He said that he felt a sickening crunch and pain and “almost passed out”. The “sickening blow” took him completely out of the game. He said that his neck was stiff as a result of the injury and that he suffered with headaches for about three days. The headaches then subsided.
9. Mr Dean said that his neck had never fully recovered. He said that he still had stiffness in his neck describing this as “restricted movement constantly”; dull headaches continued and remained a constant problem. In addition, he said that he suffered severe headaches which were a function of physical activity and neck support. These severe headaches occurred on average about two times per week; some headaches could last four to five days.
10. Mr Dean said that he did not report his injury initially because he felt it might jeopardise his career. He acknowledged that medical reports from 1995 did not always mention the nature of his condition as he managed his own condition.
11. Under cross-examination, Mr Dean was taken to records of his Army service relating to his past practice of reporting of various medical conditions to the RAP: leg arm rash/tinea (1994); strained shoulder during an obstacle course/PT session (1994). Mr Dean said that he had been directed to the RAP by his instructor for the latter condition.
12. Mr Dean disagreed with the proposition that his headaches commenced in 1996 but conceded that he suffered migraines.
13. Mr Dean was asked a number of questions relating to his participation in rugby and touch football matches from 1996 to 2001. Mr Dean said that he could not recall whether he was playing rugby in 1996. However, when shown a medical report (T4, Folio 25, 1 November 1996) which stated “injured at rugby today during a tackle – back pain”, he said that he “cannot recall injury to himself and reporting to the RAP”.
14. When referred to an x-ray diagnostic report (T5, Folio 39, 7 September 1995) which referred to early degenerative change in the cervical spine, Mr Dean said that he may have been told of these results at the time.
15. Mr Dean was then taken to the following records of his Medical Board Examinations and responses to a specific question [Question 16] in these examinations:
(a)T4, Folio 33, 7 July 1998: Question 16 – Head, face, neck scalp: Normal.
Mr Dean responded that he could not recall whether he told the Board that he suffered constant headaches and the stiff neck condition at this time.
(b)T4, Folio 35, 26 August 1999: Question 16 – Head, face, neck, scalp: Normal.
Mr Dean stated that his neck was not normal but conceded that the document had made no reference to his neck stiffness or his headaches.
(c)T 4, Folio 37, 11 May 2000: Question 16 – Head, face, neck, scalp: Normal.
16. In re-examination, Mr Dean stated that he played about six games of touch football in 1994 as part of PT. Only an occasional game was played in a competition. He said that he had only played a few rugby matches in 1994 and 1995 in an inter-unit competition.
17. Mr Dean also said that he had reported to the RAP with medical conditions such as tinea, bruises and minor incidents because they were “easily treated” and had “no effect on his career”.
Evidence of Dr Noel Saines, Neurologist
18. Dr Saines said that Mr Dean has suffered a chronic musculo-ligamentous injury, an injury to the muscles of and ligaments of the cervical spine. He said that the following opinion he gave for the injury was based on the history given to him by Mr Dean:
“Mr Dean stated that he received an injury to the neck whilst playing softball during a unit exercise in Rockhampton in January 1994. Apparently another player ran over him pushing on his head and crushing it down onto the spine. He had a crunching sensation and acute pain in the neck and almost passed out. He had a headache shortly afterwards. His neck remained virtually immobile for a few days but gradually loosened up after seeing a chiropractor. He was in the midst of assessment for promotion and did not declare the symptoms at that stage in the hope that they would settle. I understand that he sought attention for this problem initially in 1996.” (Exhibit A1, page 1)
19. From the history given to him by Mr Dean, he had concluded:
“From the information provided I can only assume that he has suffered a chronic musculo ligamentous injury. There is no clinical or radiological evidence of structural damage to the cervical spine, cervical cord or related nerve roots. His symptoms exacerbate with physical activity and possibly with stress (via a muscle contraction or tension mechanism).” (Exhibit A1, page 2)
20. Dr Saines gave the following responses during cross-examination:
(a)an acknowledgment that the diagnostic x-rays did not reveal “a lot of degenerative change”; and
(b)with respect to the causal factor for Mr Dean’s episodic neck stiffness, Dr Saines said that degenerative changes found at multiple levels [in the mid-cervical spine] “may be a component”. However, “the changes on the x-rays were not to me impressive”.
21. In response to a Tribunal question whether any limitations in his opinion may arise given that his report only referred to CT and plain x-rays of the cervical spine in September 2001 – without any reference to an analysis of all diagnostic x-ray investigations of the cervical spine (and lumbar spine) in September 1995, September 1997, January 1998 and August 2001 - Dr Saines replied:
“I was of the opinion in the setting of a history which was described as commencing … after an injury, being relatively severe and subsistence since then, and at times, you know, quite limiting, but not accompanied by what I thought from my opinion was … advanced or even moderately severe degenerative changes on the radiology; and I think the addition[al] reports are in keeping with my assessment of the more recent studies.”
Evidence of Dr Thomas Parsons, Orthopaedic Surgeon
22. Dr Parsons said that he first saw Mr Dean in June 2000 and stated that his:
“diagnosis was based upon the history, and the nature of his injury, his symptoms, together with my clinical examination and review of X-rays. The history was more of a direct blow, and possibly, in fact quite prompt rear-rotational injury to his head and upper neck at the top of his head in about February, or January, of 1994 in a softball game, and he described neck and upper cervical spine pain, headache which had been probably intermittently ever since that time he told me.”
23. In addition, Dr Parsons stated that:
“clinical examination showed some limitation of movement, not gross, but it depended upon the direction. He had discrete, and detectable limitations of movement, and pain in his neck – upper cervical spine mainly, which I felt was compatible with a history of an injury, and some residual loss of movement, and his headache.”
24. Dr Parsons said that further diagnostic x-rays and scans of the skull and the skull/cervical spine junction requested by him were:
“actually normal and I concluded therefore that he had a compression of the facial injury with basically a soft tissue component so the residual contracture was an ongoing pain.”
25. Dr Parsons said that degenerative change was almost universally throughout the spine “with” very, very slight degenerative change in the upper cervical spine; as well as minor degenerative change in the spine.
26. Dr Parsons stated that he did not believe the source of Mr Dean’s symptoms were the minor degeneration changes in his upper cervical spine – notwithstanding that Mr Dean’s symptoms related to the upper cervical spine and produced upper spine pain and headache.
27. Dr Parsons stated that it did not seem to him that Mr Dean was feigning or exaggerating his symptoms and stated that Mr Dean had:
“limitation of movement with pain in the upper cervical spine area and I felt that … it was a subtle loss of movement but it was clearly present and I felt that [it] was quite compatible with his described symptoms and the nature of his injury.”
28. During cross-examination, Dr Parsons conceded that the following conclusion contained in his report:
“…he began to develop recurrent attacks of neck pain, stiffness and headache. These events all appear to be linked, certainly in time, and are probably linked pathologically.”
was based on the history given to him by Mr Dean with respect to his headache, neck pain and stiffness and “was not related to his findings”.
29. It was Dr Parsons’ opinion that it would be “very unusual” for a 38 year old man to have recurrent headaches or even neck pain as a result of degenerative change. It was Dr Parsons’ opinion that he found it:
“extraordinarily difficult to attribute [Mr Dean’s] on-going symptoms with flare-ups to a simple degenerative process, in a man of his age and with that distribution. That is, in the other cervical spine.”
30. He acknowledged that he would not expect symptoms of ongoing dull headaches as a result of the underlying degeneration of the cervical spine.
31. Dr Parsons conceded that he was not a neurologist but, in his opinion, sub-occipital headaches (occurring beneath the base of the skull) were not commonly caused by stress and activity and:
“I would believe yes, that stress and anxiety can be the sole cause of headaches and they could aggravate existing headaches, which have another source…..for the pain.”
32. In response to a Tribunal question as to the objective criteria that he had relied upon to conclude whether Mr Dean’s injuries related to natural degeneration or trauma from injury or some combination of both, Dr Parsons replied that there were a number of positive and negative features as follows:
(i)that the nature of his injury would lead one to believe that Mr Dean sustained an injury specifically to the cranio-cervical junction. The major compression and rotation force would be the upper cervical spine, not the middle or lower spine;
(ii)that Mr Dean’s history was one of similar symptoms but fluctuating that occurred over a number of years. In other words, headache, mid and upper cervical spine degeneration;
(iii)that the presence of degenerative changes in his mid or in his upper cervical spine explained his symptoms to him; and
(iv)that it would be “extremely uncommon” for a man aged between 30 and 40 to have headaches and cervical spine pain derived from “so called degenerative changes in the cervical spine”. Such a conclusion represented a negative reinforcement of his diagnosis.
Evidence of Dr Bruce Martin, Orthopaedic Surgeon
33. Dr Martin had evaluated a series of x-ray and CT diagnostic tests undertaken over time (1995–2001) and had concluded:
“5.2I arranged for plain x-rays of the cervical spine. These were taken on 27 August 2001 (report enclosed). These films are reported as showing mild degenerative changes in the mid-cervical spine between C4 and C7. There is slight disc space narrowing and some uncovertebral joint osteophytosis. This process has resulted in minimal narrowing of the intervertebral foramena bilaterally between C3 and C6.
5.3I note the report of a CT cervical spine carried out on 12 September 1997. This report indicates no disc protrusion or significant degenerative changes in the apophyseal joints.
5.4I note another report relating to x-rays of cervical spine taken on 7 September 1995. These films are reported as showing slight narrowing of the C4 C5, C5 C6 and C6 C7 disc spaces in keeping with early degenerative change.” (T15, Folio 63).”
34. It was Dr Martin’s opinion that such degenerative changes in the cervical spine would only give rise to “mild symptoms” in the neck.
35. It was also Dr Martin’s opinion that he would not expect the symptoms and effects of the injury described by Mr Dean in February 1994 to worsen some twenty months after the event. Dr Martin stated that “an acute injury to the neck may be associated with some pain but that the pain will gradually resolve”.. Dr Martin stated that he could not conceive of any injury that might produce unremitting symptoms, even a fracture or dislocation, assuming that such an injury was treated appropriately.
36. During cross-examination, Dr Martin was taken to the following statement contained in a Medical Board Examination (T4, Folio 23, Question 45, 30 June 1995):
“Cervical discomfort, following softball injury, February ’94. Seen by chiropractor. Causes no problem with work but occasional disruption with sleep.”
Dr Martin was then asked whether this statement would change his opinion with respect to the cause of neck pain and headaches. He responded “not really” and “I assume he’s [Mr Dean] stating that he has had cervical discomfort from an injury that occurred 16 months earlier”.
37. When asked in cross-examination whether the degenerative changes identified in radiological investigations were consistent with Mr Dean’s symptoms of headache and neck pain, Dr Martin responded:
“It’s hard to associate with them or it’s not really possible to associate those claimed symptoms with the radiological evidence of degenerative change which affects a number of levels but which is mild, although somewhat premature…
Well, he complains of rather constant pain in a statement he has made. He said he has never been without pain since this incident. Degenerative changes are really an aging process. They affect different parts of the body at different stages and everybody is individual in this respect and degenerative changes aren’t generally associated with pain.”
38. When asked further whether the symptoms complained of by Mr Dean could be explained by an injury that had been sustained in February 1994, Dr Martin responded:
“Well, no, they can’t because an injury – I think if we use the term ‘event’ rather than injury, because an injury has never been identified. Injury is damaged tissue and that has never been identified…
A significant injury would have been associated with severe pain and seeking of medical advice at the time.”
39. Dr Martin stated that, in his opinion, if Mr Dean had suffered severe pain from a neck injury “he would have been concerned with his physical status and would have sought medical advice”. It was Dr Martin’s opinion that Mr Dean had not sustained a significant injury and that there was no injury which was the basis for the symptoms of which Mr Dean complains.
40. In response to a question by Mr Rashleigh whether the opinion of Dr Martin that a significant injury did not occur because of the fact that Mr Dean had not sought any medical treatment, Dr Martin replied:
“Not only that. I mean, that’s part of it but the other is there is no evidence. There is no clinical evidence or radiological evidence of an injury.”
41. Dr Martin conceded that Mr Dean “may have suffered” musculo-ligamentous injury to his neck in the event as described by Mr Dean in February 1994. However, it was his opinion that Mr Dean’s symptoms were in excess of the pathology revealed by the x-rays and CT scans.
42. Dr Martin acknowledged that if it were accepted Mr Dean suffered from the symptoms he complained of, there must be some explanation for these symptoms. However, it remained his opinion that the symptoms Mr Dean complained of did not result from any incident that may have occurred in February 1994.
43. In response to a Tribunal question relating to the objective criteria relied upon by Dr Martin in correlating the symptoms Mr Dean complained of and causation – natural degenerative changes, trauma from the softball incident or some combination of both, Dr Martin responded:
(a)That there was no objective way of assessing symptoms. “Symptoms are what a patient complains of and if a doctor is to make a correct diagnosis of a problem, he has to evaluate the patient in a number of ways including objectively, and it is not reasonable to just accept symptoms”. Reliance was also placed on clinical experience of the medical expert, a knowledge of what type of pathology might produce what type of symptoms and disability - together with a clinical assessment and radiological and/or other investigations;
(b)That Mr Dean’s symptoms were “not consistent with an injury, the history being of consistent pain in the neck. It is not consistent with an injury which has been identified…an injury of much greater magnitude would not be associated with continual pain and stiffness in the neck which is what Mr Dean has stated in a statement of his that he experiences -–ongoing symptoms since this event”; and
(c)if the symptoms cannot be explained in terms of the pathology or the contemporaneous information as to the nature of the injury, “credibility comes into it…credibility is a very important part of an assessment”.
Contentions and Submissions of the Parties
44. Mr Rashleigh referred to Mr Dean’s history of having suffered an injury to his neck in February 1994 and that the symptoms that he described arose from that injury. Moreover, that Mr Dean continued to suffer these symptoms, including at the time he made his claim for compensation. Mr Rashleigh submitted that Mr Dean’s explanation for his reluctance to complain about the incident that led to the injury [that it would jeopardise Mr Dean’s career] was plausible.
45. In addition, it was Mr Rashleigh’s contention that previous incidents or conditions complained of by Mr Dean, such as bruises or tinea, should be viewed quite separately from the softball incident and subsequent injury.
46. Mr Rashleigh submitted that Mr Dean had experienced pain consistently and stated that there had been no challenges to his taking of painkillers over extended periods of time or that physical exertion caused pain to occur.
47. Mr Rashleigh submitted that both Dr Parsons and Dr Martin agreed that Mr Dean’s symptoms were not consistent with the degenerative findings in the x-rays and the CT scans.
48. With respect to the issue of credibility, Mr Rashleigh challenged the weight that should attach to Dr Martin’s evidence that “seems to suggest” that there was “no medical treatment sought, no collateral evidence or whatever”.. He submitted that the evidence of Dr Parsons was relevant, in this regard, given that he had provided a credible explanation from his clinical findings as to the cause of Mr Dean’s symptoms.
49. With respect to Mr Dean’s failure to give notice of the incident, Mr Rashleigh submitted that, based on the material before the Tribunal, this issue did not seem to have been the subject of consideration by the original decision-maker or on reconsideration.
50. With respect to the issue of prejudice arising under section 53 of the SRC Act, Mr Rashleigh contended that there was insufficient material before the Tribunal to consider the issue, stating:
“…it may very well have been considered, it may very well have been waived. I don’t know.”
51. With respect to the issue of permanent impairment, it was Mr Rashleigh’s contention that it had not been the subject of the reviewable decision stating “the review officer…does not seem to have turned his or her mind to that issue”.
52. Mr Rashleigh then made the following submissions in relation to the section 53 issue:
(a)that the document that accompanied the claim form, including the letter from the solicitor and the statement about the injury, constituted notice;
(b)whilst acknowledging that there had been some delay in the notice – that delay in itself was not enough, as “real prejudice” had to be shown; and
(c)acknowledging there was “some prejudice”, he submitted that because of the situation of the respondent only raising the issue the day before the Tribunal hearing, that this was inconsistent with the obligations imposed for “equity and good conscience” in decision-making under the SRC Act. Mr Rashleigh stated that the applicant had come to the Tribunal hearing “without anyone having considered that – or if they had considered it, then they haven’t thought it sufficient enough to note it in the documentation”.
53. Ms Ford submitted that Mr Dean had not been badly injured “if there had been some softball injury in the course of his employment”. Furthermore, Ms Ford submitted that little weight should attach to Mr Dean’s explanation that the softball incident had not been reported because of fear of jeopardising his career “if there was a dearth of reporting at this particular time or over longer periods of time”. Ms Ford contended that the situation was that Mr Dean reported “minor matters as well as significant matters” and that Mr Dean’s reason for not reporting the softball incident was not plausible.
54. Ms Ford submitted that there was no difference in Mr Dean reporting a sprained shoulder (as was the case in 1994) compared with the sprained neck from the softball incident. Furthermore, it was significant that Mr Dean was found to have a “full range of pain-free movement in the cervical spine and no report of headaches” as contained in the discharge summary of the physiotherapist on 1 September 1994 (Exhibit R2).
55. Ms Ford submitted that the conclusions in the Physiotherapist Discharge Summary were inconsistent with Mr Dean’s description of his symptoms, specifically:
(a)Mr Dean’s supporting statement (T19, Folio 79, 3 March 2001) in which Mr Dean had stated that “he had never fully regained movement since [the softball] incident”, that “since the incident, [his] neck has never fully recovered” and that he suffers “constant stiffness, soreness and recurring headaches”; and
(b)Mr Dean’s responses to the Non-Economic Loss Questionnaire (Exhibit A3, 12 March 2002) in which Mr Dean had stated that he “suffers from constant neck stiffness and pain accompanied by a constant dull headache” that he could “not remember the last time I had a neck pain free day without headache” and that he has “never felt 100% nor lived without some form of pain, stiffness or headache since the moment of my injury”.
56. Ms Ford further submitted that whereas in the Non-Economic Loss Questionnaire (Exhibit A3) under “Recreation and Leisure Activities”, Mr Dean had stated that prior to the softball incident he was a “keen rugby league player and touch footballer”, the evidence before the Tribunal was that he continued to do these things after the injury and on a number of occasions. In addition, his statement that, due to his injury, he could no longer participate in physical activities apart from golf, was inconsistent with the evidence before the Tribunal.
57. Ms Ford referred to Medical Board Examinations in 1998 (T4, Folio 33, 7 June 1998) and 1999 (T4, Folio 35, 26 August 199) in which Question 16 (“Head, face, neck, scalp”) on each examination had been marked as “normal”. Furthermore, there was no handwritten notation in respect of any problems.
58. Ms Ford submitted that whereas Dr Martin had identified these documents and incorporated the responses in his opinion, Dr Parsons’ history, on the other hand, had “assumed that the pain was basically unremitting”. Ms Ford submitted that the difference between the opinion expressed by Dr Martin and Dr Parsons reflected Mr Dean’s history they had relied upon and, in turn, the conclusions contained in their expert report.
59. It was Ms Ford’s contention that, based on Dr Martin’s opinion, the symptoms complained of by Mr Dean would not expect to worsen some 20 months after the event.
60. With respect to the issue of permanent impairment, Ms Ford stated that in this application for review, there had been no refusal in respect of permanent impairment on the reviewable decision. Furthermore, that the reviewable decision marked the parameters of the jurisdiction of this Tribunal.
61. With respect to the section 53 issue, Ms Ford acknowledged that whilst the applicant had conceded notice of the injury had not been given at the time of the incident, mention of the injury had been made to a doctor during a Medical Board Examination in June 1995. Ms Ford submitted that, in any event, notice had not been given “as soon as practicable after the injury” in accordance with the statutory requirements.
62. Ms Ford contended that in these circumstances the respondent was prejudiced as no contemporaneous medical examination was possible – nor was an evaluation possible into the circumstances of the incident and the nature of the injury on impact. Furthermore, the respondent was prejudiced by the delay in relation to the claim that the condition had significantly worsened “between the fairly minor discomfort reported in June 1995 and the symptoms reported in September 1995”.. Ms Ford concluded with the submission that the delay in the provision of notice had resulted in a situation where the nature and the significance of the incident claimed to have arisen from playing softball had become “quite uncertain”.
Consideration of the Issues
63. The objective of the Tribunal is to review administrative issues not only on their merits but in accordance with the law at all times. The relevant legislation is the Safety Rehabilitation and Compensation Act 1988.. The Tribunal has applied the following legal principles in relation to the question of causation.
(a) Legal Principles: Proof of Causation
64. The reasoning of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 as to the legal standard of proof in civil litigation, the balance of probabilities, is particularly relevant:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” (Tribunal emphasis)
65. The approach taken by our Courts to scientific evidence and the question of causation under “workers’ compensation” legislation is well illustrated in O’Neill v Commonwealth Banking Corporation (1987) 13 ALD 234, a case dealing with section 29(1) of the Compensation (Commonwealth Government Employees) Act 1971. In this case, Pincus FCJ stated (at 236):
“…To ask the question whether a particular employment was a contributing factor to the contraction of a disease or to its aggravation, acceleration or recurrence is not to use language of a technical character.
A similar point was made by Mason JA (as he then was) in Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29, in a judgment relied on by the Full Court of this court in Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533 at 537. His Honour said, at 44, in effect, that questions of causation in the application of workers’ compensation legislation ‘are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation’. At 47 he referred to a decision of the New South Wales Court of Appeal as emphasising ‘that the question of causation is essentially one of fact’. In Kirkpatrick’s case, after referring to these passages, the Full court said at 527: ‘Eschewing metaphysics, the decision of the Tribunal is in this case fundamentally a finding of fact upon a commonsense consideration of the factors which led to the applicant’s condition’…” (Tribunal emphasis)
66. A further element for expert medical opinion and the question of proof of causation with respect to possibility/probability was recognised by the Full Court of the Supreme Court of Victoria in Dahl v Grice [1981] VR 513 where Gobbo J stated (at 522):
“A third consideration is that there is inevitably much difference in the views of expert witnesses as to what constitutes a probability as opposed to a possibility, whether in terms of a particular case or simply as a matter of logic. There is the obvious danger that an expert when asked to provide an opinion as to whether a causal link exists may do so in terms of scientific proof that may be altogether too exacting for the degree of satisfaction necessary in a legal proceeding.”
67. The reasoning of Herron CJ in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (Court of Appeals NSW) is significant with respect to the evaluation of medical evidence by our Courts. At 242, Herron CJ stated:
“But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.”
68. Analysis of cases decided by the Tribunal provides guidelines to follow in order to resolve factual uncertainty (see generally McDonald v Director-General of Social Security [1984] 1 FCR 354). The general principle was stated in these terms in Re ACT Department of Health and Nikolovski (AAT Decision 10826, 27 March 1996):
“A decision-maker, and a Tribunal standing in the shoes of a decision-maker, should not exercise a power to make a decision unless it is satisfied that the facts warrant the exercise of the power. If the decision-maker or the tribunal cannot be satisfied on the balance of probabilities that facts exist which warrant an exercise of the power, then the decision-maker or the tribunal should not exercise the power. This approach accords with the view stated by the AAT in Re Twyman and Commonwealth of Australia (1987) 13 ALD 402: ‘the status quo must remain unchanged unless the evidence establishes that it should be changed’ (citing McDonald v Director General of Social Security [1984] 1 FCR 354) [at para 9].”
(b)Application of Facts to the Legal Principles
69. The first issue for the Tribunal to decide is whether Mr Dean’s cervical spine/headache condition was caused by his military employment. The resolution of this issue is essentially a factual issue (O’Neill’s case) as it will be dependent on the Tribunal’s evaluation of medical opinion evidence and the lay evidence (EMI (Australia) case).
70. The Tribunal concludes that the medical experts have adopted a reasonably similar approach to arrive at the opinions expressed in their reports. All three medical experts (Dr Saines, Dr Parsons, Dr Martin) acknowledged that they had depended on the history of the condition and symptoms given to them by Mr Dean as the starting point for their expert opinion. This history was then complemented with an evaluation of diagnostic tests (including radiological investigations), together with their own clinical experience, in order to provide objective conclusions as to causation.
71. The expert evidence before the Tribunal agreed that the symptoms complained of by Mr Dean were not consistent with the mild degeneration in the cervical spine identified from radiological investigations.
72. Next, the Tribunal has carefully considered the submissions and contentions of the parties as well as the factual evidence and information before the Tribunal in relation to the civil standard of proof as described in the “Briginshaw test”. The Tribunal has paid particular intent to the extent that any inconsistencies in the evidence may lead to “inexact proofs, indefinite testimony or indirect inferences”.
73. The Tribunal finds that the following inconsistencies in factual evidence are relevant to determining whether the answer to the question of causation of the injury and the course of Mr Dean’s military employment has been proved to the “reasonable satisfaction of the Tribunal” (Briginshaw’s case):
(a)The discharge summary of the physiotherapist (Exhibit R2, 1 September 1994) some seven months after the softball incident complained of by Mr Dean states:
“Sgt Dean stated he was experiencing no pain or problem. His cervical spine and (L) shoulder [movement] were all full range and pain free.”
The Tribunal concludes that the history and clinical examination contained in this statement is inconsistent with Mr Dean’s evidence before the Tribunal (see paragraph 55).
(b)Medical Board Examinations undertaken in 1998, 1999 and 2000 (T4 Folio 33; T4 Folio 35; T4 Folio 37) all recorded [at Question 16] that Mr Dean’s “head, face, neck, scalp” were “normal”.. In addition, the reports of these examinations did not record any notation as to pain. Accordingly, the Tribunal can only conclude that the uniformity of information contained in these reports, over time, is inconsistent with Mr Dean’s evidence to the Tribunal, as to the nature and continuation of his symptoms up to the time his claim for compensation was lodged.
(c)Dr Martin refers to a medical history questionnaire dated 9 May 2000 where there is reference to “occipital [headache] from neck ð bitemporal. Migraine in 1996/1997 Neck pain etc 1999”. Yet a Medical Examination Record dated two days later (11 May 2000) makes no reference to any complaint of neck symptoms, headaches etc (T15, Folio 65). Inconsistency is present in both records, notwithstanding they were recorded at a very similar period in time; and
(d)The Tribunal also considers that the responses by Mr Dean during cross-examination as to his participation in rugby and touch football matches over the period 1996-2001 were inadequate – given that he had been injured playing football during this time and had reported to the RAP (see paragraph 13). Furthermore, analysis of Army records indicates the following medical/sporting history (Exhibit R2):
§20 May 1996 – injured playing touch football – injury from elbow to left eye;
§8 July – playing touch footy – pain during situp – pulling and pinching pain;
§1 November 1996 – injured at rugby today during a tackle;
§11 May 2001 – played touch at PT;
§8 November 2001 – twisted right ankle during touch football competition.
The Tribunal concludes that this information is inconsistent with Mr Dean’s statement in the Non-Economic Loss Questionnaire with respect to “Recreation and Leisure Activities” (see paragraph 56).
74. Given these findings in relation to inconsistencies in the factual evidence, the Tribunal finds Mr Dean’s evidence is characterised by “inexact proofs and indefinite testimony”.
75. The reason Mr Dean gave for not reporting the softball incident in 1994, or to seek treatment, related to the fact that at this time he was involved in a promotional course from Staff Sergeant to WO2 and that he did not wish to jeopardise his Army career by reporting the injury (see paragraph 10 and T15 Folio 61). Counter-balanced against this situation is the factual situation that Mr Dean did not make reference to headaches or neck symptoms during medical board examinations on four other occasions in 1995 as well as in 1998, 1999 and 2000 [see paragraph 73(b)]. Furthermore, Mr Dean received treatment for injuries and conditions such as medical surgery for a left trochanteric bursitis, a medical meniscus injury or right knee (September 1991), Moreton’s neuroma left foot excised (February 1991), non-resolving right lower abdominal groin ache and discomfort (see Dr Saines Report Exhibit A1 and T4 Folios 22, 24). Accordingly, the Tribunal can make no other conclusion than to find that it would be “inherently unlikely” that Mr Dean would continue to not report the symptoms of his injury at any of the other times of medical examination, subsequent to the softball incident, given Mr Dean’s statement that his neck had not fully recovered and that he continued to suffer constant stiffness and recurring headaches (paragraph 55). As a result, the Tribunal concludes that Mr Dean’s evidence, in this regard, contains “inadequate testimony and indirect inference”.
76. The Tribunal concludes that the essential difference between the opinion of Dr Martin and Dr Parsons relates to the scope Mr Dean’s history, contained in Army medical records, had been considered in their clinical assessment and resultant opinion. Both reports can be clearly distinguished in this regard (for Dr Martin see T15 Folio 63; for Dr Parsons see T11 Folio 46). Specifically, the use of medical examination records by Dr Martin. Dr Saines made no reference to the past Army records referred to by Dr Martin but dealt with more contemporaneous information. Accordingly, the Tribunal prefers the evidence of Dr Martin to the other specialists as it better integrates all existing medical records, radiological investigations and clinical assessment with Mr Dean’s reported history.
77. The Tribunal accepts the proposition of Dr Martin that, for objective medical opinion to emerge, it is not reasonable to simply accept stated symptoms per se.. The Tribunal considers that in the factual circumstances of this application for review, objective medical opinion requires a comparison (or validation) of symptoms complained of by Mr Dean with independent sources of medical information that may be available. In this case, available Army medical examination records.
78. Given the Tribunal’s earlier finding on lay evidence:
(i)as to inconsistencies of Mr Dean’s evidence with respect to Army medical examination records and the physiotherapy discharge summary (paragraph 73),
(ii)the inherent unlikelihood that Mr Dean would not have reported his injury as symptoms at one of the other times available to him following the softball incident (paragraph 75),
and together with the Tribunal’s acceptance of Dr Martin’s opinion evidence (paragraph 76), the Tribunal cannot be satisfied, on the balance of probabilities, that Mr Dean’s cervical spine/headache condition was caused by his military employment pursuant to section 14 of the SRC Act. The Tribunal concludes that, on the balance of probabilities, the issue of liability has not been proved to the reasonable satisfaction of the Tribunal.
79. Given the above, the Tribunal can make no conclusion other than to find that liability does not exist for intermittent cranio-cervical headaches and associated neck pains.
80. Given this finding, there is no need for the Tribunal to consider the other issues in dispute.
81. However, the Tribunal makes the following observations in relation to the section 53 issue and the respondent’s submissions [see paragraph 52(b)]. Section 53 of the SRC Act provides for notice of injury. Subsection 53(3) deals with the question of prejudice and sufficiency of notice – as well as providing a qualification for failing to comply with the statutory requirements because of “mistake or other reasonable cause”. Moreover, the SRC Act requires Comcare to be guided by “equity, good conscience and the substantial merits of the case” [section 72(2)] with respect to its “function of making determinations accurately and quickly in relation to claims made under the SRC Act”. Accordingly, the Tribunal makes the observation that it would be prudent for the respondent to review the conduct of their case in relation to the section 53 issue and the section 72(a) requirements imposed by the SRC Act. Whilst the issue was ultimately not one for the Tribunal to decide, the applicant’s position may well have been that more notice was required to prepare a response, and to obtain evidence, in relation to the question whether “mistake or other reasonable cause”, as provided for in section 53, was a relevant consideration in the factual circumstances of this application for review.
82. For all of the above reasons, the Tribunal decides to affirm the decision under review.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Sarah Oliver
AssociateDate of Hearing 20 November 2002
Date of Decision 27 June 2003
Counsel for the Applicant Mr P Rashleigh
Solicitor for the Applicant D'Arcys
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Dibbs, Barker Gosling
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