ERIC BARBER and COMCARE - [2009] AATA 915

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 915
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1510, 1511

GENERAL ADMINISTRATIVE DIVISION )

Re ERIC BARBER

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date27 November 2009
PlaceBrisbane (heard in Rockhampton)

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

..............Signed.................
Deputy President

CATCHWORDS
WORKERS’ COMPENSATION – worker suffered a non-compensable injury – alleges two further aggravating injuries – no contemporaneous record – evidence of applicant regarding injuries not accepted – decisions under review affirmed.
REASONS FOR DECISION

27 November 2009 Deputy President P E Hack SC

The applicant, Mr Eric Barber, was employed in the Defence Department between October 2007 and August 2008. He says that he suffered a musculoligamentous strain injury involving his cervical spine in the course of that employment. He claimed compensation for that injury but the respondent, Comcare, rejected his claim.
The uncontroversial background may be shortly stated. Mr Barber was employed at the Shoalwater Bay training ground. His job involved maintaining those grounds and facilities. He resided at Rockhampton and drove to Shoalwater Bay each working day. His practice was to drive, in his motor vehicle, to the Western Street Army barracks in Rockhampton, arriving around 6 a.m. on working days and then travelling, with one or more fellow employees, in a Defence Department vehicle to Shoalwater Bay On the morning of 26 March 2008, whilst Mr Barber was driving to the Western Street barracks, he was involved in a motor vehicle accident when his vehicle was struck from behind by another vehicle. He felt immediate pain in his neck and some pain in his shoulder from the seat belt. He did not seek medical attention at that time and was able to proceed to work, albeit in some discomfort.
I should say immediately that Mr Barber accepts that the scheme of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) is that any injury arising from a journey to the Western Street barracks is not compensable and he makes no claim for compensation in respect of any injury that occurred in the incident on 26 March 2008.
Mr Barber’s neck pain settled over the next few weeks although he continued to experience pain and discomfort. On 28 April 2008 Mr Barber was driving a quad bike in the course of his employment when it was struck from behind by another vehicle. It is not in issue that such an incident occurred on that day and that it occurred in essentially the manner in which Mr Barber says. What is in issue is whether Mr Barber suffered an injury as a result of the incident. I will deal with that aspect in more detail below. It will suffice for present purposes to note that Mr Barber says that the collision occasioned him immediate pain to the neck and down his spine. That pain, he says, continued for 2 to 3 weeks and then settled to the level of pain that he had been experiencing prior to the incident.
On 30 May 2008 he met up with a fellow employee at the barracks and was driven by that employee to Shoalwater Bay. There had been heavy rains in the area in the preceding days and the gravel roads over which they travelled had been considerably eroded. Despite this, Mr Barber says, his fellow employee was driving at approximately 100km when the vehicle hit a pothole on the left hand side. The result was, according to Mr Barber, that his head was thrown from side to side causing him immediate pain to the left side of his neck. That pain, he says, continues to this day. Again, the fact of an injury occurring in these circumstances is in issue however it is accepted that when the vehicle arrived at the training centre Mr Barber made an immediate complaint to Mr Grant, the assistant range control officer, of the speed and manner of driving of the driver of the vehicle.
Mr Barber did not seek immediate medical treatment on this occasion either. His first resort to medical treatment was on 11 June 2008 when he saw his general practitioner, Dr Galley. Dr Galley diagnosed a “soft tissue injury to the neck – a whiplash injury” and referred Mr Barber to a physiotherapist for treatment.
Mr Barber lodged a claim for compensation for the whiplash injury on 26 June 2008. His claim referred to each of the three incidents that he says affected his neck. On 19 September 2008 Comcare rejected the claim for “aggravation of neck sprain”. The delegate, having considered the incidents on 28 April 2008 and 30 May 2008 separately, was not satisfied that the claimed condition arose out of, or in the course of, Mr Barber’s employment.
Those decisions were affirmed on re-consideration by separate decision dated 19 March 2009 (relating to the 30 May 2008 event) and 20 March 2009 (relating to the 28 April 2008 event). The two decisions are the subject matter of two applications before the Tribunal, 2009/1510 and 2009/1511.
Mr Barber puts his case on the basis that either one or the other or both of the events caused an aggravation of the musculoligamentous strain injury to his cervical spine occasioned by the car accident of 26 March 2008.
Mr Clark, counsel for Comcare, put his case on the footing that I could not be satisfied by Mr Barber’s evidence that he was injured in the way claimed, particularly having regard to the absence of any timely complaint of any injury.
It is necessary, to consider these contentions, to examine some of the evidence more closely. I will start with the medical evidence which was not challenged.
As I have observed Mr Barber did not seek medical attention until 11 June 2008 when he attended Dr Galley. Dr Galley’s report of 16 May 2009[1] recounts a history broadly consistent with the account of events given by Mr Barber. Dr Galley diagnosed a “whiplash” injury and said:
“The subsequent injuries he suffered in the motor vehicle accidents would also have contributed to pain and difficulty with neck movements.”
[1] Exhibit 8
Thereafter Mr Barber was referred for treatment by a physiotherapist and I have the benefit of various reports that detail that treatment. Mr Barber was seen by Dr Greg Gillett, a consultant orthopaedic surgeon, for purposes apparently connected with proceedings related to the original motor vehicle incident in March 2008. On the basis of the history provided to him Dr Gillett expressed the following, relevant, conclusions:
“In response to your specific questions as posed:
1.     The nature and extent of [Mr Barber’s] injuries of 26/3/2008 is a muscloligamentous strain injury involving the supporting structures of the cervical spine.
2.     The injuries in my view are directly attributable to the incident of 26/3/2008.
3.     …He is assessed as 6 percent impairment of whole-person function.
4.     I think the incident of 28/4/2008 has no bearing on his current situation. The event of 30/5/2008 has produced pain and may contribute to 1 percent impairment. … on the balance of probabilities I think that his symptoms of 30/5/2008 are exacerbation of the injury of 26/3/2008.
…”
Given the argument for Comcare and the absence of contemporaneous medical complaint it is necessary to consider Mr Barber’s evidence of the particular incidents. It is now accepted by Comcare, contrary to its earlier contentions[2], that Mr Barber was involved in the two incidents described by him on 28 April 2008 and 30 May 2008. In the former it is accepted that another quad bike collided with the rear of one being driven by him. That led to a heated exchange of words between Mr Barber and the rider of the other vehicle. Mr Grant became aware of the incident and its aftermath and set out to investigate the exchange of words afterwards rather than the collision itself. It was clear from his evidence that the focus of his attention was upon Mr Barber’s actions following the collision rather than the collision itself. A note of his conversation with Mr Barber on 1 May 2008 was produced[3]. It was made either on that day or the following day.
[2] See paragraph 1 of the Contentions in each of Exhibits 9 and 10.
[3] Exhibit 5
I must say that I find it odd that the focus of Mr Grant’s inquiry was directed in this way. Mr Grant appears to have questioned Mr Barber closely about his interaction with the other person, an Army senior NCO, and even warned Mr Barber that he “was in breach of the [Australian Public Service] Code of Conduct” for his remarks directed at the other person. But that curiosity aside, on Mr Grant’s account of the conversation, which I accept, at the end of his questioning of Mr Barber, he asked Mr Barber if there was anything he wanted to add to which Mr Barber responded with a comment that led Mr Grant to note,
“[Mr Barber] also said that he was concerned about any injuries it might have caused to him.”
That is, of course, Mr Grant’s paraphrase of Mr Barber’s response however Mr Barber accepted that he had not told Mr Grant that he had, as he now says, experienced pain in and following the collision. He accepts that his words, whatever they were, spoke only of the potential of hurt to him rather than an actuality of it. That seems to me to be response at odds with Mr Barber’s later report, that his neck had been jarred in the collision and “caused further pain that afternoon and at night”. Mr Barber’s response is, to my mind, inconsistent with the experiencing of actual pain on that occasion.
There was a similar absence of complaint of injury following the incident on 30 May 2008. Mr Barber complained about the manner of driving but says that the only indication he gave of any physical side effect was to move his head from side to side when complaining to Mr Grant about the driving. Understandably, as it seems to me, Mr Grant did not detect from Mr Barber any suggestion of a complaint of pain in his neck as a result of the incident.
Mr Barber’s recollections of these conversations were somewhat vague. Mr Grant appeared to me to have a better recollection of the events such that I have a distinct preference for Mr Grant’s account of events. Moreover Mr Grant was the second in command at the base, a relatively senior position. He said, and I accept, that had any complaint been made that suggested that Mr Barber had suffered an injury he would have put steps in train to report the incident within the Defence Department hierarchy. No such report was undertaken until 2 July 2008.
It was not until 11 June 2008 that Mr Barber made any complaint to anyone of having suffered pain as a result of these two events. On that day he saw Dr Galley and, as well, had a conversation with a fellow worker.
My impression of Mr Barber is that he considers that he was unfairly treated whilst employed in the Defence Department. Whether that was so is not a matter on which I am able to reach any view. However it seems to me likely that Mr Barber’s perception of unfair treatment has affected the reliability of his evidence of the effects on him of the two events. In circumstances where no timely complaint was made where one would reasonably expect a complaint to have been made, where, indeed, the response was inconsistent with the fact of an injury, and where medical attention was not sought until well after the last of the two incidents I am unable to be satisfied that the events of 28 April 2008 and 30 May 2008 occasioned any injury to Mr Barber. It may well be the case that Mr Barber continues to experience neck pain as a consequence of the original incident in March 2008. It is, I consider, quite likely that Mr Barber has sought to attribute his continuing complaints of neck pain to the later events. I need not go that far. It is enough for me to say that I am well short of being satisfied that Mr Barber suffered any physical injury as a consequence of the events of 28 April 2008 and 30 May 2008.
It follows that I would affirm each of the decisions under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         .............Signed........................................................
  Associate
Date of Hearing  18 November 2009
Date of Decision  27 November 2009
Applicant  Self-represented
Counsel for the Respondent     Mr C J Clark
Solicitors for the Respondent Dibbs Barker