Gates and Military Rehabilitation and Compensation Commission (Compensation)

[2015] AATA 1018

Gates and Military Rehabilitation and Compensation Commission (Compensation) [2015] AATA 1018 (23 December 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2014/5987
Re	Robert Gates
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	23 December 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member A C Cotter

CATCHWORDS

VETERANS’ ENTITLEMENTS – claim for compensation for back and hip injuries – motor vehicle accident – lack of evidence of accident – lack of medical evidence following accident – insufficient connection between injury and accident – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 53, 54

REASONS FOR DECISION

Senior Member A C Cotter

INTRODUCTION

1. Mr Robert Gates served in the Citizen Military Forces (“CMF”) from 9 February 1972 until his discharge, at his request, on 2 February 1975. He subsequently re-enlisted for further service in the CMF on 13 April 1976, before being discharged on 27 May 1978.

2. Between 3 and 18 June 1972, Mr Gates attended the 1/72 Recruit course in Hobart.[1]

   [1] Exhibit 1, T Documents, T 10, page 68.

3. It is alleged by Mr Gates that on the day following the completion of that course, he was being transferred from Brighton Army Camp in the south of Tasmania to 44 Transport Army Camp in Devonport, when he was involved (as a passenger) in a single vehicle accident (“Incident”). As a consequence, he claims to have suffered lower back and left hip conditions for which he lodged claims for rehabilitation and compensation with the Commission in August 2013.[2]

   [2] Exhibit 1, T Documents, T 12, pages 71-93.

4. In February 2014, the Commission issued two determinations which denied liability in respect of those conditions on the basis that the available evidence could not establish the requisite causal link between the conditions and Mr Gates’ service.[3]

   [3] Exhibit 1, T Documents, T 14, pages 95-96 and T15, pages 99-100.

5. Following Mr Gates’ request for a reconsideration, a reviewable decision affirmed the determinations in October 2014 on the ground that that the review officer was not satisfied, on the balance of probabilities, that the claimed conditions could be attributed to Mr Gates’ former military service to a significant degree.[4]

   [4] Exhibit 1, T Documents, T 21, pages 124-129.

6. Dissatisfied with that result, Mr Gates has sought a review of that decision by this Tribunal.

   ISSUES FOR THE TRIBUNAL

7. While a number of subsidiary issues are raised by the material, the primary issue is whether Mr Gates suffered injuries as alleged in the Incident in or about June 1972.

   CONSIDERATION

   Overview

8. The major difficulty that Mr Gates confronts is the complete absence of any contemporaneous records or reports of the Incident and the injuries he allegedly sustained in it. Numerous, seemingly exhaustive, inquiries of various bodies by him and his advocates have failed to locate any documents which may be of assistance.[5] Consequently, he has been unable to identify and locate any other witnesses who were directly involved in the Incident.

   [5] See Exhibit 5, Statement of Robert Gates dated 17 February 2015, paragraph [14].

9. The only potential witness he identified, his Commanding Officer at the time of the Incident, Lieutenant Colonel (then Captain) Douglas Wyatt, initially told Mr Gates’ then advocate that he could remember an accident occurring on the old Bass Highway between Delorane and Exton, “somewhere near the old mill”. However, his recollection was that there were no injuries and the vehicle was driven back to Devonport unassisted.[6] More recent contact with Mr Wyatt proved fruitless, with him indicating that he now has no knowledge of the Incident.[7] As a result, Mr Wyatt was not called to give evidence and Mr Gates’ testimony was the only available direct evidence of the Incident.

   [6] Exhibit 1, T Documents, T 6, page 51.

   [7] See Exhibit 10, Supplementary Statement of Robert Gates dated 2 June 2015 and Exhibit 11, email exchanges between Mr Wyatt and Mr Gates’ Advocate, Mr Warren Searle.

10. Briefly, Mr Gates says that on 19 June 1972, he was returning to Devonport after his training course. He and several other personnel were being transported in the rear of a “CL” Army truck. They were seated on parallel benches on either side of the truck. There was no padding or formal seat arrangements. Nor were there restraints, such as seat belts. He said that as they had risen early to commence the journey, the driver had not had sufficient sleep the night before. The driver did not stop for prescribed rest breaks during the trip and, as a result, fell asleep while driving the vehicle at high speed. The truck passed on to the wrong side of the road and collided with a two metre deep drain, which caused the vehicle to fly into the air, demolish a hawthorn hedge and continue about another 30 metres before it came to rest in the middle of a sheep paddock. While the two occupants in the front of the truck were restrained by seat belts, the unrestrained occupants in the rear were propelled into the air and landed hard in the rear of the vehicle. Mr Gates said that he sustained an injury to the small of his back on the left side of his body, and apparently hit wooden store boxes (ammunition) which were also in the rear.[8]

    [8] Exhibit 5, Statement of Robert Gates dated 17 February 2015, paragraphs [2]-[5].

11. Immediately after the Incident, Mr Gates experienced difficulty walking and getting out of the back of the truck. After being extracted from the rear of the truck by other personnel, he stated that he was experiencing severe pain and lack of mobility due to numbness, but he was ignored, probably because the other members who were in the vehicle were in shock and possibly experiencing pain as well.[9] He and the other personnel returned to Devonport in another vehicle. The truck was drivable and driven to Devonport.

    [9] Exhibit 5, Statement of Robert Gates dated 17 February 2015, paragraph [6].

12. On their return to the base at Devonport, none of the occupants from the truck were medically examined or checked. That was despite Mr Gates reporting his injuries to his superiors. He recalled:

    I was in extreme discomfort at this time and remained so for about three Months after the incident, since being propelled into a stores box (Ammunition) in the back of the Vehicle. My back and hip joint have never been the same since the incident.[10]

    [10] Exhibit 5, Statement of Robert Gates dated 17 February 2015, paragraph [7].

13. Mr Gates says that he never returned to his previous high degree of fitness and that, over time, his condition has worsened. He required a left hip replacement two years ago; his lower back has yet to be operated on.

14. Having considered the available evidence, I am not satisfied that, on the balance of probabilities, the conditions of which Mr Gates complains were suffered as a result of the Incident. I therefore do not consider that there is liability to pay compensation in respect of the claimed conditions. My reasons are outlined in detail below.

    Mr Gates’ medical records

15. Perhaps the greatest difficulty for Mr Gates is the absence of any medical records at the time of the Incident, or in the years following it, which support a causal connection between the Incident and the injuries; medical records either do not exist or no longer exist, or are conspicuously silent on the relevant injuries and the Incident.

16. Acting on what he understood were his instructions, to go home and forget about the Incident as if it never occurred, Mr Gates returned to his parents’ farm following his arrival in Devonport. At the hearing, he was asked during cross-examination whether he had sought medical treatment as soon as he got home. He said that he had not, and that he used his “own treatment” to deal with the pain and lack of mobility. He wanted time for his body to heal (he says it took three months), and so he employed others to do a number of the tasks around the farm which he would normally have done.

17. I note in passing that Mr Gates’ account is different to what he told Dr Peter Steadman during an examination undertaken for this proceeding.  He said that he went to the local doctor in Smithton about a week after the Incident, but that there were no x-rays taken “and the history would indicate there was little medical reporting of his complaint”.[11] No record of any such consultation was provided at the hearing. Mr Gates told Dr Steadman that for the next 20 years he suffered from back and leg pain and continued to get care in Queenstown. When asked by Dr Steadman whether there were medical documents that verified this, Mr Gates told him that doctors were only obliged to keep their records for seven years, so nothing was available.[12]

    [11] Exhibit 15, medical report of Dr Peter Steadman dated 4 August 2015, page 4.

    [12] Ibid.

18. There is also some uncertainty in Mr Gates’ documents as to when he first sought treatment for his conditions.  In October 2001, he completed a claim for rehabilitation and compensation for a “chipped vertebrae” which he says arose out of the Incident and which affected his back, hips, knees and feet. In that form, he stated that he first received medical treatment for that injury or illness in approximately 1981.[13] That claim was denied and Mr Gates did not seek a review of it.  The claim form completed in respect of the current claim states, however, that he first received medical treatment for the injury or disease, not in 1981, but rather, in 1993.[14] Whatever the correct date is, no medical records of consultation or treatment during either of those periods were provided.

    [13] Exhibit 1, T Documents, PT 5, page 38. 

    [14] Exhibit 1, T Documents, PT 12, page 73. 

19. Mr Gates’ service medical records contain no mention of the Incident or the alleged injuries. A Medical Board examination record of 2 June 1974 noted that his lower extremities and spine were normal. It contained a reference to an injury to his wrist in September 1972, but was silent about injuries he sustained in the Incident.[15] An entry medical history questionnaire, completed by him in May 1976 when he re-enlisted, stated that at the time he did not have an illness or disability from which he was suffering; he denied receiving any medical treatment at the time. In response to questions as to whether he ever had, or was then suffering from, back injury or other joint injury, he replied “no”, although he disclosed unrelated broken bones and fractures to the wrist, from which he had recovered.[16] Similarly, the Medical Board examination at the time noted his lower extremities and spine were normal.[17]

    [15] Exhibit 1, T Documents, PT 12, page 91. 

    [16] Exhibit 1, T Documents, PT 12, page 89.

    [17] Exhibit 1, T Documents, PT 12, page 88.

20. Mr Gates attributed the dearth of medical records concerning his injuries to the instructions issued by his superiors at the time of the Incident. In particular, he was told to “go home and forget about the incident, as though it never happened”. Being 17 years old and a relatively new recruit, he said he felt intimidated by his superiors, and carried out his instructions literally.[18]

    [18] Exhibit 5, Statement of Robert Gates dated 17 February 2015, paragraph [13].

21. While I understand that in 1972 the hierarchy and regimen of the army could well have been confronting and intimidating to a young man from a small, rural community in regional Tasmania, I am not persuaded that the explanation offered by Mr Gates satisfactorily addresses the apparent failure to obtain medical treatment and why he responded in the way he did at army medicals.

22. First, notwithstanding the ranks which they held, Mr Gates considered at least two of his superiors to be his friends. He told me that his direct superior, Sergeant Simpson, often visited Mr Gates’ parents’ house, delivering bread. Irrespective of any “order” that Sergeant Simpson might have issued to Mr Gates at the first parade after the Incident, there was seemingly ample opportunity for Mr Gates to clarify the instructions when he was in a non-threatening, supportive, home environment. That would be especially so during Mr Gates’ lengthy recuperation period; it seems extraordinary that Sergeant Simpson, knowing Mr Gates and his family on a personal level and being aware of the slow progress of his recovery, would dismiss his claims, particularly if Mr Gates displayed severe symptoms from his injuries.  Although it is not clear how much (if any) contact they had on a regular basis outside the army, I note that Mr Gates considered Mr Wyatt to be a personal friend.[19] In those circumstances, it would have been reasonable for Mr Gates to clarify, even some time later, any instructions that had been given, particularly if they were thought to be detrimental to his health and wellbeing.

    [19] See Exhibit 10, Supplementary Statement of Robert Gates dated 2 June 2015, paragraphs [1] to [4].

23. I also have reservations concerning Mr Gates’ apparent slavish following of orders and instructions issued to him. I appreciate that as a new recruit, he would have been anxious to follow the command of his superiors. However, that did not prevent him from jumping the chain of command as it applied to him; on receiving his instruction from Sergeant Simpson, he seemingly had no compunction in going “over his head”, to then Captain Wyatt. That action does not sit comfortably with what Mr Gates would have one believe was a rigid and literal adherence to instructions, no matter how unreasonable they might seem.

24. Turning to the instructions themselves, I think it implausible that they could be considered in the way that Mr Gates interpreted them, that he was precluded from disclosing his injuries to anyone, and that he should “forget” them.  That was particularly so in the context of his providing information for the purposes of his re-enlisting. If Mr Gates was impaired as he contends, and could only undertake light duties in the work which he undertook, it is curious and indeed, inexplicable, that he would seek to re-enlist in the CMF without making his own limitations clearly known. The fact that he did not do so raises the strong inference that he was not suffering from those conditions at that time, as he now suggests. It is also equally curious that the impairments of which he speaks were not identified in the Medical Board examination which he underwent on seeking re-enlistment. Had there been any suggestion that he was affected to the extent that he claims, one queries whether he would have been accepted back into the CMF. Further, it seems inconceivable that Mr Gates would construe those instructions as meaning that he could not seek medical treatment from civilian doctors (either immediately, or in the years that followed) for what would have been severe and incapacitating injuries.

25. Given the content of the army medical records revealing no relevant injury, the lack of records of treatment over the years (whether it first commenced in 1981 or 1993, or much earlier), and my scepticism about the “instructions” given to him, I am unconvinced that Mr Gates sustained the injuries that he claims in the Incident, or that they were of the severity that he now contends. In forming that assessment, I also note the remarks of Mr Gates’ long standing friend, David Jackson, who noted that Mr Gates told him that he “thought little of the situation at the time”.[20]

    [20] Exhibit 8, email David Jackson to Warren Searle dated 23 March 2015.

    Medical evidence

26. Expert medical evidence was called by both Mr Gates and the Commission. Mr Gates called Dr Bandula Palapitige, an orthopaedic surgeon at Alice Springs Hospital, while the Commission called Dr Peter Steadman, an orthopaedic surgeon in private practice and a senior visiting specialist at Brisbane’s Princess Alexandra Hospital and Lady Cilento Children’s Hospital.

27. Mr Gates initially saw Dr Palapitige on referral from his general practitioner. He presented with ongoing pain in his left hip and lower back which he had for several years. An x-ray revealed that he had advanced osteoarthritis in that hip. A left hip replacement was successfully undertaken in September 2013. An x-ray of the lumbosacral spine demonstrated degenerative changes involving facet joints at multiple levels and an old minor wedge fracture to the L3 vertebra.[21]

    [21] Exhibit 9, Medical report of Dr Bandula Palapitige dated 23 March 2015.

28. Asked whether he thought Mr Gates’ injuries had been caused by the Incident, Dr Palapitige responded by saying that it was “highly likely” that the L3 wedge fracture was due to the Incident.[22] In oral evidence in chief, he said he could not say whether the hip arthritis was directly related to the Incident, but said it was possible.[23] He acknowledged during cross-examination that the degree of trauma necessary to cause osteochondral injury to the hip (which could lead to arthritis) would be quite severe, such that the person would be unable to suppress the symptoms and would require medical attention.[24]

    [22] Exhibit 12, Answers to supplementary questions of Dr Palapitige dated 1 May 2015, page 7.

    [23] See transcript of hearing, 11 November 2015, page 6, lines [1] to [7].

    [24] See transcript of hearing, 11 November 2015, page 6, lines [32] to [42].

29. Dr Steadman thought the fact that Mr Gates suffered from arthritis in both hips was normal for his age demographic.[25] He noted from an x-ray of Mr Gates’ pelvis that it showed signs of coxa vara or varus angulation of the femoral neck on the right side, which could lead to a greater disposition to arthritis.[26] He said that, together with the fact that after the Incident Mr Gates did not display any clinical symptoms requiring significant treatment (such as requiring crutches), led him to think that the connection between the left hip condition and the Incident was potentially tenuous.[27]

    [25] See transcript of hearing, 11 November 2015, page 11, line [43] to page 12, line [6].

    [26] See transcript of hearing, 11 November 2015, page 10, lines [39] to [44].

    [27] See transcript of hearing, 11 November 2015, page 12, lines [30] to [37].

30. From x-rays of the spine, Dr Steadman noted an anterior lip fracture of vertebra L3 and changes around T11 and T12. He thought that could represent long-standing Scheuermann’s disease or potentially stable fractures, noting that the latter would have been significantly uncomfortable at or around the time of injury, as well as causing ongoing pain.[28] As to the most likely cause, he said that would depend on the clinical history he was asked to assume.[29]

    [28] Exhibit 15, medical report of Dr Peter Steadman dated 4 August 2015, page 7.

    [29] See transcript of hearing, 11 November 2015, page 13, lines [24] to [43].

31. Whatever differences might exist between them, Dr Palapitige and Dr Steadman both acknowledged that the degree of injury required to ultimately cause the conditions of which Mr Gates complained must have been severe, such that he would have been unable to suppress the symptoms and would have required medical treatment soon afterwards. Mr Gates’ failure to obtain such treatment following the Incident raises serious doubt as to whether the injuries he allegedly suffered in the Incident were as serious as he contends, and whether they in turn led to the conditions the subject of his claim. Given those serious doubts, I am not reasonably satisfied that Mr Gates’ claimed conditions were contributed to, to a material degree, by the Incident.  

    Credibility

32. I also have reservations, at several levels, about Mr Gates’ version of events and the reliability of his recollections. Without intending to be exhaustive, I set out below a number of those concerns.

1. First, I am sceptical about the detail with which Mr Gates described the unfolding Incident in circumstances where, on his own account, he was being thrown around the back of the truck and could not see through the front of the truck; his only line of vision was through the back of the truck. It is difficult to accept that during the truck’s careering he absorbed, through the open canvas, the fine detail which he now reports. It is also difficult to accept that after the truck came to a halt, he would similarly have absorbed much detail, given the state he was in and the degree of pain he would have been suffering, according to both Dr Palapitige and Dr Steadman. Examples of such details include the precise location of where the truck left the road; the speed at which it was travelling immediately prior to the Incident; the speed at which it was travelling when it hit the hawthorn hedge; and the exact locations of the particular drains, culverts, hedges and trees.

2. Second, Mr Gates’ recollections expose a number of inconsistencies which create doubt as to his reliability as a witness, admittedly 43 years after the event. Again, without intending to be exhaustive, I note the several inconsistencies between his first and second claim forms. The first claim form nominated an afternoon in May 1972 as the time of the Incident,[30] whereas in the later form, it is shown at 9:30 am in June 1971.[31]  By contrast, the accepted time appears to have been on the morning of 19 June 1972. As mentioned previously, the dates on which treatment was said to have been first sought were some 12 years apart - approximately 1981 in the first form and 1993 in the second.[32] In the first claim, Mr Gates said that he informed his supervisor (unnamed) of the accident at the time of the Incident, but in the second form he nominated Captain Wyatt as having been notified in the month of the Incident. There are also inconsistencies between the accounts previously given by Mr Gates and his evidence at the hearing. In his statement lodged in this proceeding,[33] he said there were six occupants of the vehicle (two in the front and four in the rear), whereas in oral evidence, he said there were only five occupants, three of whom were in the rear. His statement says that the Incident occurred two hours into the journey, whereas at the hearing, it had increased to three hours.[34] A number of those matters are central to Mr Gates’ version. Internal inconsistencies in his own version are of concern, particularly as his is the only version of events.

   [30] Exhibit 1, T Documents, PT 5, page 38.

   [31] Exhibit 1, T Documents, PT 12, page 73.

   [32] Exhibit 1, T Documents, PT 5, page 38 (first claim) and PT 12, page 73 (second claim).

   [33] Exhibit 5, statement of Robert Gates dated 17 February 2015.

   [34] Exhibit 25.

3. Notwithstanding the importance of the Incident to him, it appears that Mr Gates did nothing to ascertain the identities of his fellow travellers, particularly the driver. That is also curious, since they had, with others, spent the previous evening together. That lack of knowledge contrasts with the fine detail Mr Gates provided in relation to the Incident itself.

4. As I mentioned earlier, I am also sceptical about Mr Gates’ explanation for not having reported this Incident earlier, and for apparently not having obtained medical treatment earlier. In short, I think his explanation is implausible and am unconvinced by it.

5. While I appreciate that the Incident dates back 43 years and that one’s recollections will inevitably fade, I am not satisfied as to Mr Gates’ account, for the reasons outlined above.

   Other matters – Notice

6. In light of the conclusion I have reached, it is unnecessary to consider the question of whether Mr Gates is deemed to have given the requisite notice under the relevant Act. However, for the sake of completeness, I deal with this issue briefly.

7. Mr Gates maintains that as his injuries were sustained in the Incident in 1972, the applicable legislation is the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“Act”).

8. The Act sets out dual notice requirements for the making of claims under it. Section 53(1) of the Act relevantly provides that the Act does not apply in relation to an injury to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth as soon as practicable after the occurrence of the injury. Subsection (4) effectively provides that if notice is given, but fails to comply with the requirements as regards time of service or otherwise, that notice is deemed to have been served in accordance with the subsection where the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from, amongst other things, “ignorance, from a mistake or from any other reasonable cause”. Section 54(1) says that compensation in respect of an employee is not payable under the Act unless a claim in writing for compensation was served on the Commissioner within the prescribed period. The relevant prescribed period here is six months commencing on the date of injury. Subsection (6) contains a not dissimilar deeming provision to that in s 53(4).

9. It not being in issue that Mr Gates failed to serve the prescribed notices within the requisite times, the question arises as to whether he can take advantage of the deeming provisions in s 53(4) and s 54(6) respectively.

10. Mr Searle, the Advocate for Mr Gates, contended that Mr Gates failed to comply with the notice requirements because of his ignorance of his legal right to pursue compensation.

11. For the Commission, Miss Ford submitted that the Commonwealth has been significantly prejudiced by the failure to comply with the notice provisions. It has lost the opportunity to undertake a contemporaneous factual investigation and arrange for contemporaneous medical examinations, that prejudice being highlighted by Dr Steadman’s report. No other grounds for deeming were applicable.[35]

    [35] Exhibit 21, Respondent’s Statement of Issues, Facts and Contentions dated 30 September 2015, paragraph [4.5].

12. Given the length of time that has elapsed since the Incident, the complete lack of contemporaneous records and the inability to identify any independent witnesses, there is no doubt that the Commonwealth has been prejudiced by the failure to provide timely notifications.

13. I do not accept the submission on behalf of Mr Gates that his ignorance of his legal rights resulted in his failure to comply with the Act’s notice requirements. The clear operative factor was not ignorance, but rather, on Mr Gates’ evidence, his literal following of instructions issued by Sergeant Simpson and then by Captain Wyatt. As I have already concluded, I am not persuaded by that explanation and therefore, do not consider Mr Gates’ actions to have been reasonable. I therefore do not consider that the failure to comply with the notice provisions resulted from any other reasonable cause.

14. I should add that the Safety, Rehabilitation and Compensation Act 1988 (Cth), which the Commission contends is the applicable Act, contains not dissimilar notice provisions. My reasoning is equally apposite to the provisions of that Act.

15. It follows from what I have said that Mr Gates failed to comply with the requisite notice provisions under the relevant legislation. Compensation is therefore not payable to him on that basis.

    CONCLUSION

16. To summarise, I am not satisfied that Mr Gates’ lower back and hip conditions are related to the Incident and his service in the CMF. Nor do I consider that his failure comply with the notice requirements of the relevant legislation to have resulted from mistake, ignorance or another reasonable cause. As a result, I do not consider there is any liability to compensate Mr Gates in respect of his claimed injuries.

17. Accordingly, the decision under review is affirmed.

50.     I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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Associate

Dated 23 December 2015

Date of hearing	10 and 11 November 2015
Advocate for the Applicant	Mr W Searle
Counsel for the Respondent	Miss E Ford
Solicitors for the Respondent	Sparke Helmore