French and Department of Defence

[2003] AATA 187

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 187

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/390

GENERAL ADMINISTRATIVE  DIVISION

Re:         MICHAEL GERRARD FRENCH

Applicant

And:       DEPARTMENT OF DEFENCE

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             26 February 2003

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that under the Compensation (Commonwealth Government Employees) Act 1971 the respondent is liable to pay compensation to the applicant in respect of an injury to his lower back on 23 July 1983 and that liability continues.  The respondent is to pay the applicant's costs. 

(sgd) G.D. Friedman

Member

COMPENSATION - military service - lower back pain - whether pre-existing condition - date of injury - whether effects of injury have ceased

Compensation (Commonwealth Government Employees) Act 1971 s27(1)

Casarotto v Australian Postal Commission (1989) 17 ALD 321

Re Fleeting and Australian Postal Corporation [2002] AATA 1214

REASONS FOR DECISION

26 February 2003  G.D. Friedman, Member

1.      This is an application by Michael Gerrard French (the applicant) for review of a decision of a delegate of the Department of Defence (the respondent) dated 8 March 2001.  The delegate affirmed a determination of the respondent dated 8 September 1997 that the applicant suffered a low back injury arising out of, or in the course of, military service, and that the respondent was not liable to pay compensation on and from 26 August 1997. 

2.      At the hearing of this matter on 29 and 30 January 2003 Mr S. McCredie of counsel represented the applicant and Mr J. Ferwerda of counsel represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T24), together with four exhibits (Exhibits A1-A4) lodged by the applicant and two exhibits (Exhibits R1‑R2) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 10 May 1963 in Albury, New South Wales.  In 1967 his family moved to Wangaratta, Victoria where he attended school until 1976, after which he attended Lilydale Heights Secondary College (formerly Lilydale Technical School) in 1977 and 1978 (Years 8 and 9) and Upper Yarra High School in 1979.  On 16 June 1980 he enlisted in the Australian Army (the army) and after completing basic training at Wagga Wagga he was posted to the Royal Australian Corps of Engineers.  The applicant was discharged from the army on 5 May 1984 on medical grounds as he was considered to be unfit for service because of a back condition.

5.      After discharge the applicant worked for Reece Plumbing as a storeperson and was sent to Albury to assist in the setting up of a store.  The position required heavy lifting and in about 1987 he resigned.  After several months without employment the applicant commenced part-time work as a disc jockey in Albury and surrounding areas and has continued in this field ever since, averaging one or two nights’ work per week in Melbourne, Albury and Shepparton.

6.      On 15 August 1996 the applicant completed a claim for compensation.  In a determination dated 8 September 1997 the respondent rejected the claim on the basis that the applicant no longer suffered from the service-related injury to his back.  In a reviewable decision dated 8 March 2001 the respondent affirmed the determination.

7.      On 12 April 2001 the applicant lodged an application with the Tribunal for review of the decision.

EVIDENCE

8.      The applicant told the Tribunal that he had no back problems before enlisting in the army, and in the medical history questionnaire he indicated that he had no pre‑existing back condition.  He produced school reports from 1978 and 1979 (Exhibit A1) in which there is no reference to back injury.  He described himself as physically fit when he enlisted, and said he enjoyed the physical training and sporting activities during his army service.  Apart from a number of minor injuries and illnesses arising from normal military service, the applicant could recall no injuries to his back until he was admitted to the camp hospital on 28 April 1983 with acute back strain after lifting heavy books the previous evening (the book lifting incident).  After five days’ treatment, including rest and traction, he was released to light duties.

9.      On 26 July 1983 the applicant was admitted to camp hospital suffering from back pain after participating in a game of football (the football incident).  The clinical notes (T8 p94) state that the applicant was

…Taking mark at football on 23.7 fell backwards, landing with lower back across another player’s leg.  C/o some lower lumbar, & cervical regions. 

PH 2Xadmissions for back strain this year.

On 28 July 1983 he was discharged to restricted duties.  The applicant told the Tribunal that he had no recollection of this incident, but he remembered an incident in about 1981 involving a game known as killer ball in which members of two opposing teams attempted to carry a ball through each other’s goal (the killer ball incident).  He said that there were few rules, if any, and in the course of a game he grabbed the ball and was crunched by a number of participants, resulting in pain to his lower back.  He said that he was admitted to hospital for several days, and afterwards was required to wear a back brace because of the pain.

10.     The applicant had some recollection of further pain to his back in September 1983 after lifting cement sheeting.  He stated that on 21 October 1983 he injured his back when a friend jumped on him.  He explained that he has experienced back pain ever since the killer ball incident.  He said that after discharge from the army he sought treatment from a chiropractor to relieve the pain, and managed to carry out his duties with the plumbing company until the nature of his employment changed and he was required to lift heavy objects.  In relation to his work as a disc jockey, the applicant stated that he has had problems with lower back pain and his situation has worsened since his discharge from the army.  He stated that standing or sitting for extended periods is painful, so his employment opportunities are limited, and he would be unable to work full-time as a disc jockey even if the work was available.  The applicant said that his treatment has included facet joint injections, which have provided temporary pain relief.

11.     Under cross-examination, the applicant agreed that he had no recollection of the lifting books incident, but remembered the hospital admission for a back injury at that time.  He also agreed that the army clinical notes show a hospital admission on 21 October 1983 for a back injury: …mate jumped on his back last night LBP [lower back pain] since turned suddenly 12 Oct leaving restaurant or shop..  The applicant stated that he had understood this admission to be the result of back spasms while marching, and had no recollection of pain suffered on leaving a restaurant or shop. 

12.     The applicant acknowledged that the army medical records (T8) contain a number of references to histories of back pain suffered by him and family members at various times, but he had no explanation for the origin or the circumstances of these comments: Landed badly at school falling off a springboard - whole family suffers back pain, 2 brothers, 4 sisters. (Sister in traction for 14 days recently) (5 September 1983); back trouble since 12 years old also family history of back. (25 October 1983); LBP since 12 years of age. (25 October 1983) First troubled by backache at age of 13 and on and off (10 November 1983).

13.     The applicant agreed that he might have made a comment at some stage that everyone in his family has a crook back because of his perception of the attitude of medical officers, but that the comment was untrue.  He was certain that all the entries relating to him or family members suffering prior back pain were incorrect, apart from his sister who suffered a back injury in a fall from a horse.  He said that the facet joint injections were only intended to be used for temporary pain relief, and that other treatment such as bone fusion was not appropriate for him.

14.     In a written statement dated 24 April 2002 (Exhibit A2), Ms C. French, the applicant’s sister, said that she sustained a lower back injury in the 1970s after an accident while horseriding.  In oral evidence she stated that during this period the applicant was never in hospital for a back injury, and there was no history of back problems in the family.

15.     In an undated written statement (Exhibit A3), Ms E. French, the applicant’s mother, said that the applicant was particularly active as a child and adolescent, and at no time before his army service did he spend time in hospital for a back injury.

16.     In a written report dated 24 July 2000 (T17), Mr T. Hillier, orthopaedic surgeon, stated that, after examining the applicant and reviewing x-rays, he concluded that the applicant had clinical features suggesting a pars defect (similar to a stress fracture) that was consistent with the applicant’s stated history of back pain following the killer ball incident.  Mr Hillier referred the applicant for a multiple resonance imaging (MRI) scan which showed an internal disc wearing at the L4-L5 and L5-S1 disc levels.  Mr Hillier said that this injury was consistent with the symptoms described by the applicant after playing killer ball.  Mr Hillier assessed the applicant as totally and permanently incapacitated, although he also stated that any work undertaken by the applicant would need to be in a sedentary area with the freedom to move about.  In a written report dated 23 October 2000 (T18), Mr Hillier stated that even sedentary employment would be difficult without retraining and modification of the workplace environment.

17.     In oral evidence Mr Hillier stated that stress fractures are painful and often are undetected for a long time.  Under cross-examination, Mr Hillier stated that the stress fracture might have been present in the early 1980s, although disc changes are not longstanding.  He said that there was no evidence that stress fractures of the back are hereditary.  Mr Hillier noted the history given and said that before the killer ball incident the applicant had recovered from previous episodes of back pain.

18.     In a written report dated 14 December 2001 (Exhibit A4), Mr K. Brearley, surgeon, stated that the applicant is suffering from discogenic disease of the lumbo‑sacral spine, with minor developmental abnormalities of the lumbar spine including a neural arch defect on the left side at L5 and a spina bifida occulta.  Mr Brearley said:

…

His back injury occurred whilst he was serving in the army and in particular, in about 1981 when he was playing Killer Ball and his back was injured.  He was in hospital for ten days, thereafter.  Since then, his back has been the seat of constant discomfort and often acute exacerbations of pain and disability.

Had this episode not occurred in the army, there is no likelihood that he would be suffering from his present back condition.

Under cross-examination, Mr Brearley could not rule out the possibility that the pars defect might be hereditary and could be related to posture or an underlying degenerative condition.

19.     In a written report dated 26 August 1997 (T15), Mr E. Schutz, consultant surgeon, stated that after examining the applicant on 11 August 1997 he concluded that the applicant’s symptoms of minor low back discomfort with some restriction in movement related to constitutional and not army-related incidents in the 1980s.  In a written report dated 12 June 2001 (Exhibit R1), Mr Schutz stated that the applicant suffered from minor developmental and degenerative problems in the lower lumbar regions:  pars defect at L5, spina bifida occulta of a minor nature, minor degeneration at L4-5 and L5-S1 discs, and minor facet joint degeneration.  He said that at a re-assessment on 4 June 2001 the applicant presented in much the same way, although there was no back pain because of a facet joint injection in about March 2001, and movements were normal.  Mr Schutz reiterated that the underlying problems were constitutional and there was no evidence of an accident-related problem.  He said that there was no pathology or cause of continuing back symptoms which relate to the applicant’s employment in the army, and the applicant had no incapacity for work due to an injury with the army.

20.     In a written report dated 24 January 2002 (Exhibit R2), Mr Schutz stated that he had reviewed his report of 12 June 2001 after receiving a copy of Mr Brearley’s report.  Mr Schutz stated that, although the applicant gave no history of previous low back pain, the army medical records show a recorded history of previous back pain.  In relation to the apparent difference between his first report and that of Mr Brearley, he said:

…Note that episodes of increases of low back symptoms are common where there is underlying pathology or degeneration.  These episodes usually recover and there are periods without symptoms.  It may be that when he saw me he had recovered from an episode of symptoms but had another which was causing symptoms when he saw Mr Brearley.

CONSIDERATION OF THE ISSUES

21. Mr Ferwerda submitted that the relevant legislation is s27(1) of the Compensation (Commonwealth Government Employees) Act 1971:

If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.

22.     Mr Ferwerda referred the Tribunal to Casarotto v Australian Postal Commission (1989) 17 ALD 321 in which Hill J stated at p334:

…ultimately the Tribunal in considering the claim can only act on the evidence before it; to do otherwise would be to commit an error of law.  Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the Tribunal all material which will be necessary for the Tribunal to have before it to enable it to come to a decision.

He submitted that the evidence in this matter was full of significant and unexplained gaps and inconsistencies on key issues, and said that the applicant displayed a selective memory in recalling relevant events before and during his army service.  Mr Ferwerda noted that there was no reference in the army medical records to the killer ball incident, and said that incident might not have occurred at all, or the applicant might have been referring to the football incident.  Similarly, Mr Ferwerda said that the reference to a back injury suffered whilst marching was not supported by any objective evidence.  He noted that the lifting boxes incident may have been the cause of the applicant’s back injury and this incident occurred outside working hours, so that a necessary connection with employment might not be established.

23.     In relation to the applicant’s back condition before enlisting in the army, Mr Ferwerda stated that the history of a number of back injuries suffered by the applicant and family members, recorded by various medical officers and other army personnel, could only have been given by the applicant himself at the time.  These records were likely to be more accurate than the applicant’s recollection nearly twenty years later. 

24.     Mr Ferwerda stated that, on the balance of probabilities, based on the totality of evidence (Re Fleeting and Australian Postal Corporation [2002] AATA 1214) the decision under review should be varied such that the respondent was not liable for compensation for an injury arising from, or suffered in the course of, employment in the army. Mr Ferwerda noted that in the determination dated 8 September 1997 the decision-maker stated that liability for compensation ceased on 26 August 1997, the date of the first report from Mr Schutz. He submitted that if the Tribunal found liability for compensation then the appropriate date for cessation of liability should be a date closer to army service such as 5 May 1984, the date of discharge. He said that the evidence pointed to some symptoms of back pain during army service, but the applicant had recovered by the date of discharge.

25.     Mr McCredie noted that the events occurred a long time ago, and said that inconsistencies and gaps in the applicant’s evidence were inevitable.  He acknowledged that there was no record of the killer ball incident in the army medical documents, but said that the applicant had been clear in his recollection that his back was injured in a game or exercise involving a ball, and that this was consistent with an event such as the football incident because the applicant recalled being hospitalised for five days after sustaining a back injury.  Mr McCredie submitted that the army medical records, taken as a whole, were consistent with the applicant’s evidence that he recovered from the lifting boxes incident but that he never recovered after his back injury suffered in July 1983. 

26.     Mr McCredie stated that the references in army medical documents to a history of back injuries suffered by the applicant and his family were inconsistent and unreliable, and were refuted adequately by the applicant, his sister, his mother and in school records.  He said that the Tribunal should take into account that the applicant was discharged from the army on medical grounds and that he was assessed as having a permanent back problem.  Mr McCredie submitted that the Tribunal should prefer the medical evidence from Mr Hillier and Mr Brearley and find that the applicant has continued to suffer from a back injury, and that this injury was present at the date of discharge from the army.

27.     In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

28.     The Tribunal finds that the applicant gave evidence about events that occurred during his childhood and the 1980s to the best of his ability.  The Tribunal accepts that there were some inconsistencies and gaps, as would be expected when the applicant attempted to recall details of particular episodes during his army service.  The Tribunal agrees with Mr McCredie that the references in army medical documents to a history of back injuries suffered by the applicant and his family were inconsistent.  Some of the notes were hand written and the authors were not identified.  In most cases the context of the comments was difficult to determine.  For these reasons the Tribunal prefers the evidence from the applicant, his sister and his mother, together with the school records, and finds that there was no family history of back problems. 

29.     The Tribunal notes that the medical examination of the applicant prior to enlistment revealed no pre-existing back problems, and the Tribunal accepts his evidence that when he enlisted, and until 1983, he was in good health and maintained a high level of physical fitness.  He participated fully in army activities.  The Tribunal does not accept the evidence from Mr Schutz that the underlying problems were constitutional.    

30.     After considering all the evidence including medical records, the Tribunal is satisfied that the applicant suffered a lower back injury in the lifting boxes incident in April 1983 and that he recovered fully after treatment.  The Tribunal is unable to determine with any certainty whether the killer ball incident occurred or whether the applicant confused such an event with the football incident.  In any case the Tribunal accepts the evidence from Mr Hillier and Mr Brearley in preference to that from Mr Schutz.  The Tribunal is satisfied that the applicant suffered a back injury in July 1983 while on duty in the army, and that later incidents involving his back occurred as a result of this injury.  Therefore, the respondent is liable for compensation.

31.     The Tribunal accepts the evidence from the applicant regarding his back condition since his discharge from the army, and its adverse effects on his ability to maintain employment.  The Tribunal also accepts the evidence from Mr Hillier and Mr Brearley that the applicant has a high degree of incapacity for work, and that pain remains constant.  Although facet joint injections have provided temporary pain relief for the applicant, the Tribunal does not accept that this relief constitutes a recovery from the condition or an effective permanent treatment.  The Tribunal also takes into account that the reason for the applicant's discharge from the army was medical unfitness for duty because of back problems. 

32.     For these reasons the Tribunal finds that at the date of discharge from the army the effects of the applicant’s back injury remained, and liability for compensation did not cease on that date or at a later date. 

DECISION

33.     The Tribunal sets aside the decision under review and substitutes a decision that under the Compensation (Commonwealth Government Employees) Act 1971 the respondent is liable to pay compensation to the applicant in respect of an injury to his lower back on 23 July 1983 and that liability continues.  The respondent is to pay the applicant's costs.

I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  29 January 2003

30 January 2003

Date of decision:  26 February 2003

Counsel for applicant:                  Mr S. McCredie
Solicitor for applicant:                  Nevin Lenne & Gross
Counsel for respondent:              Mr J. Ferwerda
Solicitor for respondent:              Phillips Fox