Gordon and Military Rehabilitation and Compensation Commission (Compensation) - [2021] AATA 1706

Gordon and Military Rehabilitation and Compensation Commission (Compensation) [2021] AATA 1706 (11 June 2021)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/0649
Re:James Gordon
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:11 June 2021
Place:Brisbane

I affirm the reviewable decision dated 2 December 2016.
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Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for compensation for cervical spondylosis – entitlement to compensation – transitional provisions – ignorance of entitlements or procedural obligations not reasonable cause – Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) s 124(1A) – Commonwealth Employees’ Compensation Act 1930 (Cth) s 16(1) – decision under review affirmed
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 (Cth)
Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth)
CASES
Burns and Military Rehabilitation and Compensation Commission [2018] AATA 35
Commonwealth of Australia v Connors (1989) 17 ALD 313
Hunt and Military Rehabilitation and Compensation Commission [2010] AATA 259
McKechnie and Military Rehabilitation and Compensation Commission [2017] AATA 2159
Muras and Department of Defence (1998) 52 ALD 579
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
11 June 2021
INTRODUCTION

This is an application for the review of the decision of the respondent dated 2 December 2016 in which the respondent denied liability to pay compensation to the applicant for a neck injury. The applicant claims that the neck injury was the result of a motor vehicle accident in 1968 which happened in the course of his employment with the Defence Force. The applicant currently suffers cervical spondylosis for which he is seeking compensation. The applicant first sought treatment for cervical spondylosis in 1998.[1]
[1] Exhibit D, supplementary report of Dr Steadman dated 28 May 2018.
LEGISLATIVE FRAMEWORK
When the reviewable decision was made, the applicable legislation was the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). However, on 12 October 2017, the SRC Act was re-enacted as the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988 (Cth) (“the DRC Act”).[2] The DRC Act covers claims by members of the defence force which were made pursuant to the SRC Act prior to 12 October 2017 which were not determined before that date.[3] In cases such as this, this Tribunal applies the DRC Act in the determination of the claim.[4]
[2] Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) s 2(1), sch 1 item 1(1).
[3] Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) sch 1 item 64.
[4] Burns and Military Rehabilitation and Compensation Commission [2018] AATA 35 and McKechnie and Military Rehabilitation and Compensation Commission [2017] AATA 2159.
The claim was first determined by the respondent in accordance with section 14 of the SRC Act. The corresponding provision in the DRC Act relevantly provides:
14 Compensation for injuries
(1) Subject to this Part, the Commonwealth is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment…
An “employee” is defined in subsection 5(1) of the DRC Act which relevantly provides:
employee means a member of the Defence Force…
As to the definition of an “injury”, subsection 5A(1) of the DRC Act provides relevantly:
injury means:
(a) a disease suffered by an employee; …
It should be noted that where the DRC Act is applied in relation to a time before its enactment (on 12 October 2017), the version of the DRC Act that applies is taken to be the same as the version of the SRC Act that would have applied in relation to that time, had the DRC Act not been enacted.[5] Clause 14 of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) amended the definition of “disease” in the SRC Act. However, clause 41(1) of Schedule 1 of that Act provides that the amended definition of “disease” only applies in relation to an ailment (or an aggravation of an ailment) suffered after 12 April 2007. For this reason, the definition of “disease” for the purposes of applying the DRC Act to an ailment suffered on or before 12 April 2007 is taken to be the definition in the SRC Act that applied prior to 12 April 2007.
[5] Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) sch 1 item 2.
Prior to 12 April 2007, section 4(1) of the SRC Act defined “disease”, relevantly, as follows:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
This is in contrast to the current SRC Act and DRC Act which define disease in section 5B(1) as an ailment or an aggravation “that was contributed to, to a significant degree, by the employee’s employment”. In this application, the material contribution test applies.
A claim in respect of an ailment suffered before the commencement of the SRC Act is subject to the transitional provisions of Part X of the DRC Act.
Section 124(1A) of the DRC Act provides that a person is entitled to compensation under the DRC Act in respect of an injury suffered before the commencement of the DRC Act if compensation would have been payable to the person in respect of the injury under the Commonwealth Employees’ Compensation Act 1930 (Cth) (“the 1930 Act”).
ISSUES
The issues for the Tribunal’s consideration, as contended by the respondent,[6] are:
(a)Whether the applicant currently suffers from the claimed separate ‘disease’ of cervical spondylosis.
(b)If so, when was the condition first suffered by the applicant.
(c)If the condition was first suffered by the applicant on or after 1 December 1988, does liability exist under section 14 of the DRC Act to pay compensation to the applicant in respect of this condition. That is:
(i)If this condition was first suffered by the applicant on or after 1 December 1988 and before 13 April 2007, was the onset of the condition contributed to, in a material degree, by the applicant’s former employment.
(ii)If this condition was first suffered by the applicant on or after 13 April 2007, was the onset of the condition contributed to, to a significant degree, by the applicant’s former employment.
(d)To the extent that the applicant contends that an injury to the neck was suffered as a result of the motor vehicle accident in April 1968, whether liability is precluded on the basis the Applicant did not comply with the notice and claim requirements in section 16 of the 1930 Act.
[6] Respondent’s submissions dated 5 June 2020, para 2.1.
The respondent does not agree with the applicant’s final submissions dated 27 May 2020 that the “only” issue “is whether or not the motor vehicle accident that the Applicant was involved in contributed to the condition of Cervical Spondylosis that the veteran now suffers from”.[7]
[7] Respondent’s submissions dated 5 June 2020, para 2.2.
I accept the contention of the respondent as to the issues before the Tribunal in this application. I also recognise the importance of determining, in light of the medical evidence before the Tribunal, the factual matter of the relationship between the applicant’s motor vehicle accident in 1968 and his claimed condition.
BACKGROUND
Service of the applicant
The applicant served a period of national service with the Australian Artillery Corps from 1 October 1967 to 1 October 1969. At the hearing the applicant confirmed that this was his period of service.[8]
[8] Transcript, 22.10.2018, p 6, lines 45-46, p 7, line 1.
Claim history
On 21 June 2016, the applicant submitted a claim under the SRC Act for “Injury To Right Knee”, “Hearing Loss In Both Ears”, and “Injury To Neck And Shoulders”.[9] On 12 September 2016, the respondent accepted liability for the injury to right knee, rejected liability for hearing loss, rejected liability for an injury to the shoulders and rejected liability for cervical spondylosis, which is the condition suffered by the applicant in his neck.[10]
[9] Exhibit A, T8, pp 31-33.
[10] Exhibit A, T10, p 44.
Motor vehicle accident
The applicant attributes his claim for an “injury to neck” to a motor vehicle accident. In the claim form, the applicant stated that the date on which the motor vehicle accident occurred was 1 November 1968.
The service medical records do not contain any record of or reference to a motor vehicle accident on 1 November 1968. The service medical records do, however, contain a record of a motor vehicle accident which is said to have occurred on 9 April 1968. The applicant confirmed in evidence that this was the correct date of the motor vehicle accident.[11]
[11] Transcript, 22.10.2018, p 7, lines 42-43.
The report of the motor vehicle accident contained the following statement of the applicant:
while travelling to duty in gunner Christon’s car we were involved with another car with a head on collision I was thrown through the window of the car onto the roadway. Then I was taken to R.G.H. Daw Park…[12]
[12] Exhibit A, T16, pp 105-106.
In his statement dated 31 May 2015, the applicant has outlined the nature of his duty that he performed at the time of the motor vehicle accident. He remarked that: “[w]hilst on duty, I was travelling from Woodside to Keswick Barracks in Adelaide on an Army approved journey to perform Funeral Party Services for a deceased Vietnam Veteran.” [13]
[13] Exhibit A, T6, p 20.
Contemporaneous medical evidence
A report from a medical officer on 20 May 1968 described the injuries sustained by the applicant at the motor vehicle accident being: “1. Multiple minor facial lacerations – healed; 2. Avulsion 4 central upper teeth; and 3. traumatic effusion right knee; x-rays normal”.[14]
[14] Exhibit A, T16, pp 105-106.
The records do not disclose that the applicant sustained any injury to his neck. When the applicant gave evidence, he agreed that there is no x-ray evidence that he sustained any fracture of his neck caused by the motor vehicle accident.[15] The applicant was in hospital for 8 days and took 11 days leave.[16] The medical officer indicated it was not likely that there would be any “permanent ill effects”.
[15] Transcript, 22.10.2018, p 12, lines 8, 35-36.
[16] Exhibit A, T16, p 105.
The discharge report indicated that the applicant sustained the injuries of “concussion [and] facial lacerations”.[17] The medical officer reported in the summary of case history that:
this member was admitted following a vehicle accident in which he sustained mild concussion, multiple lacerations to his face, and a broken tooth.[18]
The medical officer also reported that:
lacerations were excised and sutured under general anaesthetic, by Mr. M. Smith, and he had a good cosmetic result.
He will need dental attention for a retained root, otherwise would be fit to resume duty.
Xray skull and right knee – NAD.
[17] Exhibit A, T16, p 107.
[18] Exhibit A, T4, p 15.
The applicant returned to active service after the motor vehicle accident. He was able to play football. On 14 May 1969 he injured his right knee during a football match. On 16 May 1969 he went into hospital and underwent a right meniscectomy. He was discharged from hospital on 2 June 1969.[19]
[19] Exhibit A, T16, p 87.
On 9 October 1969 he underwent a medical board examination on his discharge from the Army. The applicant then disclosed the injuries from the motor vehicle accident. There is a record that the applicant was then suffering from his right knee injury from the football match. [20] The records of the board do not refer to any neck complaint. The records disclose that in answer to a question about “what other disabilities, wounds or injuries have you suffered during your service?”, the applicant responded: “car accident with facial injuries”.[21] At the hearing the applicant accepted that the records of the medical board do not refer to any neck pain experienced by the applicant.[22]
EVIDENCE
[20] Exhibit A, T16, p 87.
[21] Exhibit A, T5, p 16.
[22] Transcript, 22.10.2018, p 20, lines 37-39.
The applicant’s evidence
The applicant provided three written statements, each dated 31 May 2015.[23] He provided two further statements in which he responded to questions put to him by the respondent. One of these statements is dated 3 July 2017[24] and the other is undated.[25] Both of these statements were provided to the Tribunal on 4 July 2017.
[23] Exhibit A, T6, pp 20-21.
[24] Exhibit C.
[25] Exhibit B.
The applicant gave evidence at the hearing of this application on 22 October 2018.
The applicant was referred to the report from a medical officer dated 20 May 1968.[26] He agreed that the account of the injury in the report was “a summary of what happened” but said that he did not know whether or not it was accurate, “because I was unconscious.” He said his recollection of the incident was that:
… we were driving and I was looking at a lovely young girl at a bus stop and, from what I understand, so was the driver and we had a head-on smash. That’s the next minute I wake up in Daw Park Hospital.[27]
He said, however, that this account is what he believes happened “as explained to me, either by Gunner Christo or the hospital or my Sergeant Major or whoever.” [28]
[26] Exhibit A, T16, pp 105-106.
[27] Transcript, 22.10.2018, p 10, lines 11-13.
[28] Transcript, 22.10.2018, p 10, lines 14-15.
The applicant gave evidence that he was “not too sure” about his period of hospitalisation. The medical officer’s report states that the applicant was hospitalised for 8 days, however, he said in evidence, “I looked at a final medical board report and I was in hospital for 13 days and - so, was I in hospital for eight days or 13 days”.[29]
[29] Transcript, 22.10.2018, p 10, lines 23-25.
The applicant agreed in evidence that “I’ve never ever seen an X-ray to say I have or I haven’t had any fractures to the neck caused in that accident.” [30]
[30] Transcript, 22.10.2018, p 12, lines 27-29.
The applicant gave evidence that sometime after the motor vehicle accident in 1968 he returned to playing Australian Rules football and injured his right knee.[31] He could not say whether or not the injury to his knee in football was because of the motor vehicle accident.[32]
[31] Transcript, 22.10.2018, pp 13-14.
[32] Transcript, 22.10.2018, p 14, lines 13-14.
The applicant was referred to the final medical board non-medical discharge form.[33] The applicant agreed that the form does not record ongoing neck pain linked to the motor vehicle accident.[34]
[33] Exhibit J.
[34] Transcript, 22.10.2018, p 20, lines 43-46.
The applicant gave evidence that, having been discharged from the Army in 1969, he travelled to South Africa and London and “went hitchhiking around the world.” [35] While in South Africa, he built a kneeboard, rode a surfboard, swam in the ocean, and climbed a mountain.[36]
[35] Transcript, 22.10.2018, p 22, lines 13-22.
[36] Transcript, 22.10.2018, p 22, lines 43-45.
The applicant gave evidence of his work as an offset printer when he returned to Australia in 1972. He described working with a printing press, which involved loading reams of paper into the printing press, stacking paper and collating pages.[37] He gave evidence that he worked shifts of eight hours and he agreed that the work in that role was of a repetitive nature.[38] After some time he stopped working as an offset printer and began working in a technical role in the sales division of the business.[39]
[37] Transcript, 22.10.2018, p 23, lines 1-15.
[38] Transcript, 22.10.2018, p 23, lines 33-34.
[39] Transcript, 22.10.2018, p 24, lines 20-22.
The applicant gave evidence that in 2000, after suffering a seizure, he left the printing business and began helping his wife with her indoor plant hire business.[40] He said he would “generally work, most probably, two to three days a week. Go down very early in the morning and try to finish as early as I could by lunchtime.” [41] His duties involved “working down in the nursery, potting plants up … and walking around here with 5 litres of water and watering plants or cleaning the plants, general duties.” [42] For the rest of the day, after working in the morning, he would do “normal household chores” such as “sitting on a ride-on mower or whipper snipper”.[43]
[40] Transcript, 22.10.2018, p 25, lines 9-12.
[41] Transcript, 22.10.2018, p 25, lines 23-25.
[42] Transcript, 22.10.2018, p 25, lines 45-47, p 26, lines 1-5.
[43] Transcript, 22.10.2018, p 25, lines 28-29.
The applicant gave evidence that he “didn’t know” whether his shoulder and neck pain was “from watering and doing plants, or whether that’s because of the car injury”.[44] The applicant was still helping with his wife’s business “on and off” when Dr Steadman examined him on 18 September 2017.[45]
[44] Transcript, 22.10.2018, p 26, lines 40-42.
[45] Transcript, 22.10.2018, p 25, lines 39-40.
Medical evidence
On 9 March 2018 a bone scan was performed on the whole body of the applicant. The report of Dr Wong, the nuclear medicine physician, is in evidence.[46] That report discloses that there is active arthropathy at the left facet joint of C3/4, the right facet joint of C4/5 and the C5/6 disc level. The most intensive active arthropathy in the cervical region is at the left facet joint of C3/4. The report of the bone scan also refers to moderate activity at both acromioclavicular joints, the sternoclavicular joints, the rights femorotibial joint, the left ankle and the left mid foot. Also in evidence is a MRI cervical spine report dated 9 March 2018 by Dr Cameron Napper.[47] Dr Napper has reported that the neck pain of the applicant may be discogenic given the multilevel degeneration.
[46] Exhibit F.
[47] Exhibit F.
In his report dated 20 March 2018,[48] Dr Michael Bryant has referred to the MRI and bone scan report and has commented that there are widespread changes throughout the cervical spine in particular and in the lumbar spine. In his report Dr Bryant has provided his opinion that “[i]t is almost certain that the motor vehicle accident that [the applicant] describes during his time in the armed forces has contributed to the current state of play in his cervical spine.” It is apparent that Dr Bryant has come to his conclusion based upon the self-report of the applicant.
[48] Exhibit E.
While I accept that Dr Bryant has provided an honest opinion based upon what he has been told by the applicant, I do not accept that Dr Bryant has been provided with accurate information about the circumstances of the motor vehicle accident. Dr Bryant did not give evidence before the Tribunal so he could not say on what information he based his opinion that is in his report dated 20 March 2018. However, in his report dated 9 April 2020[49] it is apparent that Dr Bryant was informed by the applicant that during the 1968 accident he sustained an injury to his neck. I do not accept that this information is correct because there is certainly no reference to such a neck injury in the contemporaneous medical records. In his later report, Dr Bryant opines that the applicant has had some impairment ever since the 1968 accident. However, I infer that this conclusion was formed by the self-report of the applicant. I consider that it is not plausible that the applicant had an impairment after the motor vehicle accident when the applicant was able to play football, surfing and go mountain climbing after the motor vehicle accident. I also regard as significant that the applicant, after his discharge, had a clearance from the medical board. It is because the self-report of the applicant is not accurate, that I cannot prefer the opinion of Dr Bryant to that of Dr Steadman.
[49] Exhibit L.

Dr Steadman was in the possession of the contemporaneous medical records before he gave his opinion; those records which do not contain any mention of any injury or trauma to the cervical region.[50] It does not appear that those records were made available to Dr Bryant. Dr Steadman, as an independent medical examiner, as well as having access to the contemporaneous medical records, also had the benefit of taking a factual history from the applicant which informed his opinion. Dr Steadman also has the benefit of experience in the trauma unit of a leading hospital.[51]
[50] Exhibit D, report dated 27 September 2017, p 2.
[51] Transcript 12.02.2020, p 19, lines 28-29.
There are commonalties in the opinions of Dr Steadman and Dr Bryant: both doctors recognise that there are widespread degenerative changes in the cervical spine, the lumbar region and in other locations. Dr Steadman and Dr Bryant both accept that a trauma to the cervical spine can cause cervical spondylosis; however, Dr Steadman is of the opinion that there was no such trauma. His opinion was informed by an examination of the contemporaneous medical records.[52]
[52] Transcript 12.02.2020, p 23.
I accept the opinion of Dr Steadman that the widespread degenerative changes are consistent with the cervical spondylosis condition being a constitutional condition rather than the result of trauma. In giving evidence Dr Steadman stated that the presence of moderate to severe degeneration at every level of the spine indicated a constitutional process.[53] Dr Steadman contrasted the condition of the applicant with that of a bike rider who had broken her neck in a cycling accident and years later suffered whiplash in a motor vehicle accident. In that case she had normal radiology apart from one level where she had a fracture from the cycling accident years earlier.[54]
[53] Transcript 12.02.2020, p 16, lines 32-44.
[54] Transcript 12.02.2020, p 16, line 47, p 17, lines 1-13.
I rely upon the reports of Dr Steadman dated 27 September 2017 and 28 May 2018 to find that there is no relationship between the cervical spondylosis condition of the applicant and the motor vehicle accident.[55]
COMMONWEALTH EMPLOYEES’ COMPENSATION ACT 1930 (CTH)
[55] Exhibit D.
Section 124(1) of the DRC Act provides that the DRC Act applies (inter alia) in relation to an injury suffered before the commencement of the DRC Act.[56] Section 124(1A) of the DRC Act provides that a person is entitled to compensation under the DRC Act in respect of such an injury if compensation would have been payable to the person in respect of the injury under the 1930 Act.
[56] Subject to Part X of the DRC Act.
In this matter, compensation is payable to the applicant under the DRC Act by reason of section 124(1A) only if compensation would have been payable to the applicant under the 1930 Act in respect of his claimed cervical spondylosis disease.
This warrants consideration of whether the applicant satisfies the requirements for lodging a claim under the 1930 Act, in particular section 16(1) the 1930 Act.
Section 16(1) of the 1930Act required an injured person to give notice of the accident as soon as practicable after it had happened and before he had voluntarily left the employment of the Commonwealth; and it required the injured person to make a claim for compensation within six months from the occurrence of the accident.
I respectfully agree with the analysis of Deputy President Hack SC in Hunt and Military Rehabilitation and Compensation Commission,[57] where the learned Deputy President explained:
Sub-section 16(1) has the effect of imposing two requirements – a requirement to serve “notice of the accident” on the Commissioner (by the employer) “as soon as practicable after it has happened” and a requirement to make a claim for compensation within six months from the occurrence of the accident.
[57] [2010] AATA 259 at [5].
While a report of the accident was made by the applicant, he did not make a claim for compensation within the prescribed period of six months from the date of the motor vehicle accident on 9 April 1968. The applicant’s claim was in fact lodged on 21 June 2016 – 48 years and 2 months after the motor vehicle accident.
There is a proviso to section 16(1) of the 1930 Act which provides an exception to these two requirements where the failure to make a claim was occasioned by “mistake, absence from Australia or other reasonable cause.”
In his statement the applicant remarked that “at the time of the accident I was never advised that I should have made claims” and “unfortunately I wasn’t aware that I could claim for this condition from the neck injury”.[58] I am bound by a decision of the Federal Court of Australia[59] in which it was held that ignorance of the requirement to lodge a claim under the 1930 Act does not amount to a mistake or other reasonable cause under the proviso.
[58] Exhibit B.
[59] Commonwealth v Connors (1989) 17 ALD 313 (Northrop, Keely and Ryan JJ) (FCAFC). See also Muras and Department of Defence (1998) 52 ALD 579 (AAT) at [21]-[22].
CONCLUSION
I accept the evidence of Dr Steadman. In formulating his opinion he was informed by the contemporaneous medical evidence; he also had regard to the evidence of the applicant before the Tribunal. I cannot prefer the evidence of Dr Bryant to the considered opinion of Dr Steadman as it is not apparent that Dr Bryant was provided the contemporaneous medical reports concerning the motor vehicle accident. I also comment that Dr Bryant has quite properly recognised the constitution of age-related degeneration. The Tribunal accepts Dr Steadman’s evidence that the beginning of the cervical spondylosis condition was in the late 1990s and that the condition is a constitutional condition. There is no evidence of any trauma to the neck which could have caused an isolated condition of cervical spondylosis condition. There is no cogent evidence that the motor vehicle accident contributed to the cervical spondylosis condition in a ‘material’ degree.[60]
[60] See paras [6]-[7] above.
Even if Dr Bryant is correct that the cervical spondylosis condition was caused by the motor vehicle accident in 1968 (which I certainly do not accept), the claim of the applicant is barred by the 1930 Act, and liability is excluded for the reasons set out above.
I made the observation that the respondent has not just placed reliance on what some may regarded as a technical bar to the claim of the applicant. The respondent and its legal representatives have quite properly investigated the merits of the claim.
I find that the respondent is not liable under section 14 of the DRC Act to pay compensation for the cervical spondylosis condition of the applicant.
DECISION
I affirm the reviewable decision dated 2 December 2016.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated: 11 June 2021

Dates of hearing:
22 October 2018 and 12 February 2020

Date for closure of submissions:
30 September 2020

Advocate for the Applicant:
Mr Ken Cullen

Solicitors for the Respondent: Mr Matthew Hawker, Sparke Helmore Lawyers

Dates of hearing:	22 October 2018 and 12 February 2020
Date for closure of submissions:	30 September 2020
Advocate for the Applicant:	Mr Ken Cullen
Solicitors for the Respondent:	Mr Matthew Hawker, Sparke Helmore Lawyers