Frohloff and Military Rehabilitation and Compensation Commission

[2007] AATA 1699

Administrative Appeals Tribunal

WRITTEN REASONS FOR ORAL DECISION [2007] AATA 1699

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 2006/830

GENERAL ADMINISTRATIVE DIVISION		)                  2007/464
Re		BRADLEY FROHLOFF

Applicant

And MILITARY REHABILITATION & COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell

Date of oral decision        21 August 2007

Date of written reasons    27 August 2007

PlaceSydney

Decision  For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the reviewable decisions made by the Military Rehabilitation & Compensation Commission dated 23 May 2006 and 9 October 2006.

.......................[sgd].......................

Presiding Member
  Senior Member, Mrs Josephine Kelly  

WRITTEN REASONS

1. At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Applicant and Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

WORKER’S COMPENSATION – applicant served in Royal Australian Air Force -claim for liability, permanent impairment, non-economic loss – headaches from cleaning fuel tanks – differing histories given to doctor’s – reviewable decision affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1998: sections 14, 24 & 27.

WRITTEN REASONS FOR ORAL DECISION

Senior Member, Mrs Josephine Kelly

Member, Dr John Campbell

1.      Mr Frohloff has served in the Royal Australian Air Force since 1988.  He claims for liability, permanent impairment and non-economic loss pursuant to sections 14, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1998 for headaches as a result of carrying out duties inside the fuel tanks of F-111 aircraft, particularly carrying out the duty of sealing and desealing the fuel tanks.  Mr Frohloff carried out these duties during an 18-month period from 1988 to 1990 and an 8 month period in 1997-98.  His case relied on the opinion of Professor Lance, consultant neurologist.

2.      The difficulty in this case has been the different histories given by Mr Frohloff to doctors, the Tribunal, and in his written statements.  For example, he told Professor Lance that his headaches radiated from the back of his head whereas he told the tribunal and other doctors including Drs Edwards and Lotentz that it started in the front of his head and radiated to the back.

3.      He also told   Professor Lance that he had headaches twice a month all day, and felt confused that day and the day after, lacked concentration and attention which Professor Lance considered was the residual of migraine.  This was not the evidence given to the tribunal or to Dr Edwards, for example.  Mr Frohloff also told Professor Lance that he had nausea and vomiting but told the tribunal that most times he did not get nausea and vomiting.  When cross-examined he said that there were occasions initially in 1988 and the first 18-month period when he was working on the F-111 aircraft when he had a couple of bouts of nausea associated with headache.

4.      Another example of the inconsistencies in Mr Frohloff’s evidence is the lack of information about the impact on daily living given to Professor Lance compared with his statements of 3 November 2006.  The difficulty for us is compounded by the lack of contemporaneous reports of symptoms from 1988 to the present.  Mr Frohloff was cross-examined and re-examined about reports of headaches in his RAAF medical records.  In two instances he could not recall the circumstances but in the others the headaches, he said, were a symptom of some other ailment such as having a cold or suffering an injury to the neck on one occasion.

5.      Mr Frohloff sought to explain this lack of contemporaneous records by saying that he did report to a medical facility but was not treated by a qualified doctor but by some other person who told him to just go and take Panadol.  He said, as we understood his evidence, that he had done this on a number of occasions.  However, we find it somewhat difficult to accept that given the severity he reported of his symptoms to, for example, Professor Lance, that having suffered a condition for nearly 20 years he would not have sought specialist medical attention or sought treatment other than Panadol or at the most, Panadeine.  He gave evidence that they were the only medications he ever took.  He took no migraine treatments at all.

6.      He also gave evidence in his statement and to various doctors about reduction in participating in sporting and social activities because of headaches but in cross‑examination conceded that he may have told some doctors of other reasons for such cessation including having a young family and increased lethargy after the removal of a cyst in 1997 and an increase in weight by 25 to 30 kilograms.  There was also the evidence of his suffering a psychiatric condition for which he has been treated over a period of about nine years.

7.      Another aspect which was not consistent with his claimed condition and any impairment or disability was that he has retained a fitness level of MEC1 throughout his time in the RAAF.  That is, there has been no reduction in that level because of his complained of headaches.  As Professor Lance stated, the diagnosis depends on the history given.  Given the inconsistencies in the histories and lack of contemporaneous records, we are not satisfied that Professor Lance’s diagnosis and assessment of impairment are firmly based on reliable facts.  In saying that we are not suggesting that Mr Frohloff was seeking to mislead anyone.  Rather, we find that his evidence is unreliable.

8.      Accordingly, we are not satisfied that Professor Lance’s diagnosis and assessment of impairment is based on fact and for those reasons we affirm the decision under review.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Member, Dr John Campbell

Signed: Ms P Nimmagadda
              Associate

Date of Hearing  20 August 2007 
Date of Oral Decision                21 August 2007
Date of Written Reasons          27 August 2007

Solicitor for Applicant                D’Arcy’s, Military Compensation Division of Slater Gordon

Counsel for Applicant                G. Wilson
Solicitor for Respondent           Australian Government Solicitor
Counsel for Respondent           B. Kelly