Gordy and Military Rehabilitation and Compensation Commission (Compensation)

Gordy and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 1265 (11 May 2018)
Division:VETERANS’ APPEALS DIVISION
File Number:2016/2579
Re:Julie-Ann Gordy
APPLICANT

Military Rehabilitation and Compensation CommissionAnd
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:11 May 2018
Place:Brisbane

The decision under review is affirmed.
………………[sgd]…………………………………..
Senior Member Theodore Tavoularis
CATCHWORDS
VETERANS’ COMPENSATION – claim for compensation for cervical spondylosis – where Applicant listed a number of events to which she attributed her condition – statement of principles – where statement of principles requires trauma to the cervical spine – whether any of the events described by the Applicant match the required trauma to cervical spine – where Applicant’s evidence is unsupported by medical evidence – lack of contemporaneous evidence – decision under review affirmed
LEGISLATION
Military, Rehabilitation and Compensation Act 2004 (Cth), ss 23, 27, 339
CASES
Hill v Repatriation Commission [2004] FCA 832
SECONDARY MATERIALS
Statement of Principles No. 67 of 2014
REASONS FOR DECISION
Senior Member Theodore Tavoularis
11 May 2018
INTRODUCTION

The Applicant, Ms Julie-Ann Gordy, enlisted in the Royal Australian Navy (“RAN”) on 25 June 2005, aged 20 years. She was discharged on 28 January 2016.
On 3 November 2014, the Applicant lodged a claim for compensation for “ankle recon, compartment syndrome, C4/5 – C5/6 slipped discs”.[1] This claim came before the Respondent on 11 February 2015 resulting in a determination to accept liability for the Applicant’s claimed “Right Ankle Sprain” and “Bilateral Compartment Syndrome” but denying liability in respect of the claimed “Cervical Spondylosis” pursuant to s 23 of the Military, Rehabilitation and Compensation Act 2004 (Cth) (“the MRC Act”).
[1] Exhibit 12, T Documents, T 7, p 41.
By way of reviewable decision dated 17 August 2015, the Respondent affirmed its determination of 11 February 2015 as it related to the Applicant’s cervical spondylosis, thus maintaining its denial of the Applicant’s claimed cervical spine condition.[2]
[2] Ibid, T 47, p 185.
The Applicant sought review of that reviewable decision and on 12 May 2016 activated the jurisdiction of this Tribunal by filing an Application for Review. This is the Application presently before the Tribunal.
ISSUES
The parties seem of one mind as to the issues in this matter:[3]
(a)Does the Applicant suffer from a cervical spine condition, namely, “cervical spondylosis”?
(b)If yes to (a), what is the relevant Statement of Principles applicable to the Applicant’s claimed cervical spine condition, and what requirements must she meet under it?
(c)Does the Applicant satisfy the requirements identified in the Statement of Principles relevant to her claimed cervical spine condition, such that this condition could be said to be connected to her military service in order for liability to be accepted having regard to the relevant provisions of the MRC Act?
[3] See Exhibit 1, Applicant’s Statement of Issues, paragraph [2], first page. See also Exhibit 9, Respondent’s Statement Issues.
DOES THE APPLICANT SUFFER FROM CERVICAL SPONDYLOSIS?
The first issue before the Tribunal – whether the Applicant suffers from cervical spondylosis – is not particularly contentious: the medical evidence supports the notion that the Applicant suffers from cervical spondylosis.
Further, it is necessary for the Tribunal to isolate a date of clinical onset for the cervical spine condition. On the basis of the evidence before me, that date was in March 2014. In his report of 9 April 2014, Dr Noel Dan, a neurologist, thought:
There was a right C4/5 osteophyte with some disc component and at right C5/6 there was a disc lesion which I thought looked acute. At both levels there was some flattening of the right side of the cord.
This diagnosis was, in my view appropriately, not disputed by the Respondent.[5] Consequently, I find that the Applicant does suffer from cervical spondylosis, and the date of onset of this condition is in late March 2014.
[5] Exhibit 10, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), p 9.
THE RELEVANT STATEMENT OF PRINCIPLES
For the Applicant’s cervical spine condition to be accepted pursuant to the MRC Act, the Tribunal must be reasonably satisfied that this condition is either a service injury or a service disease. The allocation of this condition to either category is not as critical as it is in applications involving the Comcare legislation. Suffice it to say that both “service injury” and “service disease” are defined in s 27 of the MRC Act which provides:
Main definitions of service injury and service disease
1For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i)     the injury was sustained due to an accident that would not have occurred; or
(ii)    the disease would not have been contracted;
but for:
(iii)    the person having rendered defence service while a member; or
(iv)   changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d)the injury or disease:
(i)     was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii)    was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
Note:       This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
(e)the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i)     to a place for the purpose of performing duty; or
(ii)    away from a place of duty upon having ceased to perform duty.
The reasonable satisfaction component of the Tribunal’s present decision making process is governed by s 339 of the MRC Act. That section stipulates that reasonable satisfaction can be assessed by reference to the relevant Statement of Principles (“SoP”). Section 339(3) makes it clear that in determining claims of this nature, a decision maker must be reasonably satisfied that an injury sustained or a disease contracted by an applicant is a service disease or a service injury only if:
(a)the material before the decision maker raises a connection between the injury, disease and the particular service rendered; and
(b)there is in force a SoP determined under the MRC Act; and
(c)the material and the SoP uphold the contention that the injury or disease is, on the balance of probabilities, connected with that service.
In the present matter, the Applicant claims she suffered the injury in the performance of her military duties. The remaining question for the purposes of s 339(3) involves identification of a relevant SoP. In this matter, the relevant SoP is No 67 of 2014, concerning “cervical spondylosis”. The relevant factor within the SoP that must exist is factor contained in s 6(f):
having trauma to the cervical spine at least one year before the clinical onset of cervical spondylosis; and where the trauma to the cervical spine occurred within the 25 years before the clinical onset of cervical spondylosis;
There is a consequential requirement for an Applicant to meet the definition of “trauma to the cervical spine”. In s 9 of the SoP “trauma to the cervical spine”:
…means a discrete event involving the application of significant physical force, including G force, to the cervical spine that causes the development within twenty-four hours of the injury being sustained, of symptoms and signs of pain and tenderness and either altered mobility or range of movement of the cervical spine… These symptoms must last for a period of at least seven days following their onset;
The exercise, therefore, involves (1) the identification of a discrete event; (2) the application of significant physical force to the cervical spine in that event; (3) the onset of symptoms within twenty-four hours; and (4) their persistence for at least a week.
The combined effect of s 339 of the MRC Act and SoP No 67 of 2014 is to establish specific parameters on which an applicant’s case must be configured. The Tribunal must look for a discrete event of such significant physical force that it gave rise to the results required to meet the stipulations of the SoP. I will commence that investigation below.
DOES THE APPLICANT SATISFY THE REQUIREMENTS OF THE SOP?
The Applicant has pointed to seven different events which she contends satisfy the requirements of the SoP. I will address them each in turn.
Event 1
The first incident occurred in July 2006 when she was involved in a toxic hazard exercise at sea. She was required to wear a certain breathing apparatus that weighed approximately 15kgs together with a certain respiratory device that weighed approximately 3kgs. The latter device was worn around her neck. She says she was required to proceed down a small hatch wearing both pieces of equipment and, in so doing, she somehow “got caught by the regulatory [sic] attached to the mask and the ladder bay. My team mate thought he was helping by pushing my head through the hatch as sometimes this is the only way you can get through hatch’s [sic] if you get stuck. This was not the case for me, as it pushed my head into an awkward position and caused the [respiratory device] to fall through the hatch and put strain on my neck”.[6]
[6] Exhibit 3, Statement of Applicant dated 27 June 2016, p 1, [3(i)].
This incident apparently caused her to wake with headache and a tight and tender neck the next day. She talks about a limited range of movement in her neck, not being able to turn it to the left or right “without pain”. No mention of this incident was made to any person in authority and, more particularly, no mention of it was made to any health care professional. The Applicant thought that because the incident occurred while at sea, she did not think much could be done for her. She says the pain eased after a week of self-massage and the application of liniment and anti-inflammatory cream.
There are two specific evidentiary difficulties with acceptance of this incident as a causative factor. First, although cited as an incident causative of her now claimed condition, absolutely no mention of it was made to any health care professional, including those that later treated her. Secondly, the Applicant’s version of this incident does not square with the history she provided to Dr Jason McDarra, a consultant orthopaedic surgeon. Four medical reports from Dr McDarra appear in the evidence. They comprise his report dated 4 August 2015,[7] that dated 5 August 2016,[8] the further report dated 2 September 2016,[9] and his final report dated 14 February 2017.[10]
[7] Exhibit 12, T Documents, T 30, pp 118 - 131.
[8] Exhibit 6.
[9] Exhibit 7.
[10] Exhibit 8.
In cross-examination, it was put to the Applicant that despite her recollection of certain trauma as a result of her head being placed in an awkward position, resulting in a strain to her neck and resulting headache the next day, with tightness and tenderness to the neck, she made no complaint or report of the incident to any medical officer. She said, “No.” It was further put to her that medical attention is readily available on naval ships, even while they are at sea, to which she replied, “It is, yes.”
Event 2
The second incident apparently occurred in September 2006. The Applicant says she was involved in a de-ammunitioning exercise of the vessel on which she was then serving. Her specific task was to relocate ammunition for a 76mm gun. The Applicant says that doing this task for three hours caused her to wake the next day with a headache and stiffness in her neck and back which, in turn, caused her pain and discomfort when moving her head left and right. She also managed these symptoms with anti-inflammatories and self-massage and after a week the stiffness and pain went away.[11]
[11] Exhibit 3, [3(ii)].
In cross-examination, the Applicant conceded there is no mention of any symptom or other medical problem by her to a medical officer, nor is this incident mentioned in any of her medical records. When that proposition was put to her, she responded with, “That’s correct.” Dr McDarra explicitly mentioned “carrying ammunitions such as 76mm cannon shells” as something that “would have resulted in repetitive microtrauma, initiation and progression of spondylosis”.[12] However, Dr McDarra only mentioned the Applicant’s history of neck issues as starting in 2009,[13] not in 2006 when this event purportedly occurred. This report undermines the Applicant’s claims as, even if she had suffered the said microtraumas, it indicates that she did not suffer from the symptoms she claimed, and which the SoP requires.
[12] Exhibit 7, p 4.
[13] Ibid.
Event 3
The third incident occurred in August 2007. The Applicant says that while she was representing the Navy in an inter-service football tournament, she collided with another player, resulting in apparent trauma to her head that, in turn, resulted in a bloody nose and a twisted left knee as she landed on the ground.[14] While there is reference to this incident in the medical records,[15] the relevant record seems to refer to a “service soccer” incident that occurred a number of days prior. The record talks about “impact w. 2 players … twisting motion” with a further reference to “R.I.C.E.” which is an acronym for “Rest, Ice, Compression, Elevation”. There is no record of the “bloody nose” nor “instant headache” mentioned by the Applicant in her statement. The question must be asked as to why these two specific items do not appear in the medical record.
[14] Exhibit 3, [3(iii)].
[15] See Exhibit 13 Bundle of Outpatient Clinical Records – see entry for 14/8/07.
Counsel for the Applicant sought to ameliorate the absence of the bloody nose or instant headache in the medical record by suggesting that medical professionals often record symptoms or histories from patients without subsequently reviewing those notes with a result that patient histories are sometimes deficiently recorded. I think that contention goes nowhere in the present matter because not only does the history taken for this incident make no mention of any symptom remotely connected with or causative of a cervical spine condition, most, if not all, of the histories taken by other health professionals do not contain any reference of any such causative factor.
With particular reference to this incident, the Applicant says that while playing inter-service sport, “I collided with another player, I hit my head, causing a blood nose and twisted my left knee as I landed. I had an instant headache but the pain in my knee was more serve (sic) and sort (sic) medical help for that, which is noted in my medical files.”[16] The Applicant was specifically asked whether or not it was her evidence that she suffered any neck symptoms as a consequence of this incident. She replied with, “Yes it is.” Counsel for the Respondent noted that the Applicant did not mention anything about neck pain in her statement describing this incident, to which she replied, “No.” She was then asked why there is no reference to any neck symptoms in the description of this incident in her statement. She replied with, “Because it didn’t last seven days.” She was asked what the significance of seven days was, to which she replied, “it wasn’t really…it was an injury that lasted maybe one or two days, so it cleared itself up. No need to record it.”
[16] Exhibit 3, [3(iii)].
Counsel for the Respondent then further explored the significance of the Applicant’s reference to “seven days,” and why she did not mention it in her statement. She responded with, “Because it is not really relevant, is it?” Counsel for the Respondent then put it to the Applicant that the only reason she had any conception of a seven day requirement is because she had been reading the applicable Statement of Principles. She responded with, “No, because it was an injury that lasted one or two days and cleared itself up.” It was further put to her that there is nothing in her statement about this incident referring either to neck pain or explaining her reference to “seven days”. She responded with, “I don’t say a lot of things in my medical documents that happened either.” In response to an assertion of a complete absence of described neck symptoms arising from this incident in August 2007, she said, “Yeah, I just said I got hit in the head, got a blood nose and twisted my knee – which I had MRIs for, which was more prudent than a sore neck that lasted one or two days.”
It seemed the Applicant sought to ameliorate her evidence by focusing on an apparent injury to her knee, sustained in this particular incident of 14 August, 2007. Counsel for the Respondent then referred the Applicant to the relevant Outpatient Clinical Record,[17] which made a mention of, “left lateral knee discomfort,” with a further notation of a, “5/10 constant” scale of pain. The Applicant was invited to read the rest of the record for that day. She was asked to respond to the proposition that this medical record contained absolutely no reference to any head injury whatsoever. She agreed and said, “No, it just says ‘impact two players’ and ‘twisting of the knee/twisting motion’.” She was asked whether this medical record made any mention of an “instant headache” as she refers to in her statement. She responded, “No.” She was also asked whether this medical record made any mention of any neck symptoms. She responded, “No.”
[17] Exhibit 13,.
Event 4
The fourth incident cited by the Applicant apparently occurred in October 2008. This time the Applicant was representing the Australian Defence Forces in some type of international football match against New Zealand. She was struck in the face by the ball following a kick by a member of the opposing team. She contends that she was knocked off her feet and landed on the ground on her back. She speaks of being very stiff and sore the next day and, again, finding it painful to move her head from left to right. There was also a terrible headache on the following day that lasted for all of that day. As I understood her evidence, the reason this injury was not reported to any medical person was because, in the same game, the Applicant experienced trauma to her ankle by an opposing player. The ankle injury was apparently more serious than the incident causing her to be struck in the face with the ball so she reported the ankle aspect but not the ball in the face aspect of this incident.
With specific reference to this incident, the Applicant recalls that, “During this game, I was hit in the face by the ball from the shot of the opposition. It knocked me clean off my feet and I landed on my back. The next day, I was very stiff and sore and found it painful to move my head left and right, I woke with a terrible headache that lasted all day.”[18] There is further mention of an injury to her ankle, torn ligaments and a chipped bone arising from this match. It was again put to the Applicant that, despite her apparently clear recollection of injuries sustained in this incident, she makes no reference to any neck injury in her statement, nor is there a reference to a neck injury resulting from this incident anywhere in her medical records. She responded with, “No, there’s not.”
[18] Exhibit 3, [3(iv)].
Event 5

The fifth incident apparently occurred in November 2009 when the Applicant was representing the RAN at the Australian Defence Force National Football Championships. In the game between her team and the Army team, the Applicant says she was “… taken out from behind and my head hit the ground hard”. She nevertheless continued with the game and “… didn’t think any thinking (sic) of it until the next day”. Again, she says she woke the next day with a stiff neck finding it difficult to turn her head to the right. She dealt with these symptoms by taking anti-inflammatory medication and by stretching.[19]
[19] Ibid, [3(v)].
During the same tournament, the Applicant was fit enough to take the field in the scheduled match against the New Zealand Defence Force team. She says she went into a challenge against an opposing player for the ball and that the challenge was done with her head. She headed the ball but as soon as she did so she “… felt a sharp pain run down the side of my head, neck and arm and into my fingers. It only lasted a few minutes and went away.” The Applicant further recounts that:
For approximately 2 months after I had niggling headaches and occasionally I would wake up with some stiffness in my neck, I would selfmanage with heat packs, massage and anti-inflammatory medication, until one day in early January 2010 my headache was so serve (sic) I went into Duntroon medical on the weekend. The nurse felt my neck it was sore to touch and said that it is most likely a tension headache, she called the on (sic) doctor who then prescribed me with stronger pain killers and referred me to physiotherapy. On occasions since then when I turn my head really quickly I sometimes get a shooting pain up through my head ending in my eye brow, my tongue would go numb and the pain would radiate down the side of my neck and arm into my wrist.[20]
[20] Exhibit 3, Statement of the Applicant, page 2, para [3(v)].
In her evidence in chief, the Applicant sought to augment her evidence about this November 2009 incident by deposing to seeing a doctor about it and receiving seven days off active duty via that doctor. I have misgivings about this evidence in circumstances where (1) it is not mentioned in her statement (Exhibit 3); (2) the Applicant took on a certain nervous and uncertain disposition when giving this evidence; and, perhaps, most significantly (3) there is no mention of this November 2009 incident in any of the Applicant’s medical records.
On the basis of her written evidence, the Applicant asks the Tribunal to accept that she experienced niggling headaches, stiffness and soreness in her neck, a shooting pain up through her head to the point of her eyebrow when turning her head quickly, numbness of the tongue and pain radiating down the right side of her neck and arm and into her wrist. Despite having these symptoms for two months, she did not report them to any medically qualified person. I find this lack of reporting entirely inconsistent with the Applicant’s readiness to engage medical assistance for other asserted symptoms as and when she needed it. The resulting difficulty for the Applicant in this application is that she now has, to my mind, grave difficulty in convincing the Tribunal that the symptoms she now speaks of are responsible for the cervical spondylosis condition. The evidence, in my view, does not support such a contention.
Event 6
The sixth incident apparently occurred in March 2011 while the Applicant was representing the Navy in a civilian 6 a side football competition in Forster, New South Wales. In this incident, the Applicant says there was a collision of heads while she and another player were contesting a header of the ball. The Applicant contends that she instantly had a headache and woke up the following day with a stiff neck that prevented her from turning her head to the right. She also said she had a headache on that following day. The Applicant says she reported the incident to the medical staff two days after the event. A record was kept of that attendance. It relevantly provides:
14/3/11… presents with an headache [sic] for past 24 hrs. nil medications taken. mbr [member] spent all day yesterday playing soccer in sun. Sunburn on face and legs. mbr [member] states there is no pain from sunburn. mbr [member] has been drinking fluids. … neuro-obs nad. No other symptoms… [diagnosis] Heat injury due to long exposure from sun.
Plan: Paracetamol… push fluids. given vaseline intensive care. R/V if symptoms worsen.[21]
[21] Exhibit 14 Outpatient Clinical Record.
The Applicant’s version of the injuries she apparently sustained from this collision of heads does not square with the Outpatient Clinical Record. The treating medical person makes no reference to any neck stiffness or limited capacity to turn to the right or to the left. There is no reference in this Outpatient Clinical Record of any collision of heads whatsoever.
According to the version put by the Applicant, this particular medical officer has misunderstood the entirety of what they were apparently told by the Applicant, such that this medical professional (1) somehow forgot to record being told of a history of a collision of heads during a football match that (2) led to the Applicant suffering from headache and that, in turn, (3) resulted in a stiff neck. It is difficult to allocate credibility to this evidence in light of what plainly appears in the relevant Outpatient Clinical Record.
The Applicant’s contentions about this incident can be called into further question when one has regard to the Outpatient Clinical Record for the following day, 15 March 2011. According to this record, the Applicant presented with “facial/eyelid swelling”. The relevant medical officer reported that the Applicant presented with facial eyelid swelling and that she also provided a history of sunburn, consistent with what was observed by the medical officer on the previous day. On 15 March 2011, the medical officer noted that the Applicant had described swelling at home, that she had slept with an ice pack wrapped in a paper towel and placed on her face, that such pain worsened during the day. In terms of the history provided by the Applicant on this particular day (15 March 2011), the medical officer noted that the Applicant “played soccer on weekend, stayed in hotel, … headed the ball several times.”
This is precisely where the credibility of the Applicant’s evidence can be called into question. What has been recorded by the relevant medical officer simply does not square with the symptoms the Applicant raises in her statement. Simply, there is no mention in the Outpatient clinical Records of headache or neck pain or stiffness in relation to this incident.[22]
[22] Exhibit 14.
The veracity of the Applicant’s evidence was not assisted by her performance under cross-examination. She was referred to Exhibit 14 and, in particular, the respective Outpatient Clinical Records dating from 14 March 2011 and 15 March 2011. She agreed with the suggestion that (1) the medical attendances described in the records for these two days occurred after the she played soccer and (2) outlined the symptoms she describes as resulting from this incident. It was put to her that there was no reference in the medical records to any of the symptoms she refers to in her statement. She appeared at first to not understand the question and responded with, “What do you mean?” The question was refined and re-put to her such that nowhere in these records is there mention of her reporting, “a stiff neck, hurting to turn to my right and a headache,” nor that she, “…had a hot shower and put a heat pack on my neck to go to sleep.” She agreed and said, “No, it doesn’t.”
The question was further refined and put to her on the basis of whether the abovementioned records for 14 and 15 March 2011 contained any reference to the actual incident – that is, anything about the collision of heads with another player while heading the ball, of both players falling to the ground and of any subsequent symptoms recalled by the Applicant in her statement of 27 June 2016. She conceded the subject Outpatient Clinical Records contained nothing of the sort and responded with, “No.”
Event 7
This seventh incident recalled by the Applicant apparently occurred in March 2012 while she was playing futsal.[23] The Applicant described the incident of being, “…Kneed on the right side of my head by a player.”[24] She recalls momentary memory loss, of having a “severe headache,” and feeling, “dizzy and nauseous,” and of waking up the next day when, “I still had the headache and was sore and stiff in my neck.” It was put to her that there was no contemporaneous (or other) mention or complaint about any such incident or derivative symptoms in her medical records. She conceded as much and said, “No, there’s not.”
[23] Futsal is a variant of football (soccer). It is usually played on a hard court, smaller than a football (soccer) pitch and mainly indoors.
[24] Exhibit 3, [3(vii)].
The Applicant was then asked to agree that it is evident from her medical records that she was a regular attendee for medical treatment for her ankle problems. She replied, “Correct.” She was asked a similar question about her shin condition and she replied, “Correct.”
Event 8
The Applicant was then referred to the eighth incident described in her statement. This incident involves the Applicant apparently experiencing symptoms from her work posting to the Australian Federation Guard (“AFG”) in 2013. She agreed that this posting marked the starting point for her reported symptoms involving her shins and calves. She also agreed with the proposition that nowhere in her medical history is there a record of any report or complaint of any headaches or neck symptoms resulting from her duties with AFG.
There must surely be serious and significant misgivings around the Applicant’s recollection of the history she has apparently given to medical officers who, one must presume, are properly resourced and experienced to carefully receive and accurately record any history that is provided to them by a member of the armed services. This is borne out by a cursory reference to the medical records. It does not make for comfortable or convincing reading in terms of what the Applicant recalls in her statement. On 14 May, 2013[25], the medical officer records the following:
[Member] presents w. headaches for 3/7. [Member] thinks related to neck pain + stiffness. Headache starts at the base of the skull, moving to frontal area. Panadine taken last evening w. some effect. Memory of some pain years ago; anti-inflammatories helped.
(My underlining)
[25] Exhibit 13.
A further illustration of the chasm between the history recorded by the medical people and what the Applicant now says she recalls is also evident from the further entry made on 14 May 2013.[26] It is clear from this particular medical record that the medical officer who first saw the Applicant on this day referred her to a medical doctor. This is because the letters ”MBBS” appear at the foot of this further entry on this day. The medical doctor recorded these things:
Headaches recently – musculoskeletal provokation (sic)
Relieved with Mesyndol/massage. No oral or visual disturbance
No family h/o [history of] headache
No past h/o [history of] hypertension
Full ROM [range of movement] of c- [cervical] spine…[27]
The respective entries for this particular day of 14 May 2013, to my mind, demonstrate the difficulty for the Applicant, in terms of what she has told a given medical officer/doctor simply not squaring with what she has written in her statement. The highest that it is put (or, more correctly, recorded) by the first medical officer on 14 May 2013, is that she has a memory of some pain “years ago” and that she took anti-inflammatories for that pain and that they helped her. The medical doctor who also saw her on that day records virtually nothing of what the Applicant records in her statement. I agree with the Respondent’s contention: the Applicant cannot explain the gulf between what is recorded in the medical history and what she now contends to recall in the statement on which she seeks to rely in this matter. I therefore cannot agree with the contention put on behalf of the Applicant that these medical records provide some measure of corroboration for what she says in her statement. Clearly, the medical records do no such thing.
[26] Exhibit 13.
[27] Ibid.
The Applicant was then referred to paragraph 4 on the fourth page on her statement. The following portions of that paragraph were then read to her:
I was medically upgraded in early March 2014 and was currently undergoing the returned (sic) to job program. I had returned back to unit Personal Training, and after my first PT session I was quite stiff and sore in my neck, back and arms.[28]
[28] Exhibit 3, [4].
The Applicant both recalled and confirmed this part of her statement as being correct.
The following additional portion of this paragraph was then read to the Applicant:
I didn’t think much of it, as it had been awhile (sic) since I was able to do any real fitness so I pushed myself. Early the next morning, I awoke with serve (sic) pain in my neck and right arm. The pain was that serve (sic) that it woke me up during sleep.[29]
[29] Exhibit 3, [4].
The Applicant agreed, on oath, that this was an accurate and correct description and recollection of her history in the period preceding her report of symptoms in her contemporaneous “Injury or disease details sheet.”[30] It was put to her that if this recollection is correct, why then did she not say that in her, “Injury or disease details sheet,” instead of attributing her symptoms to, “Beds and pillows on base. Injury happened while asleep on base.”?
[30] See Exhibit 12, T Documents, T10, pages 47-48. In response to this question in this form: “When did you first notice signs or symptoms of the injury or disease?”, the Applicant wrote, “20/03/2014.”
I found her response both unconvincing and unhelpful. She said:
Can I explain? That’s what I tried to explain before. So, what happened when I was sleeping – the doctor explained to me that I must have had my hair out and I was laying on my hair when I rolled. I’ve forced it and that’s what’s pushed the disc to completely unhinge on my arm that caused the nerve pain.
She was challenged about this answer on the basis that this is not the cause or story she wrote in her above mentioned, “Injury or disease details sheet” or in her written evidence to the Tribunal.[31] In the former, she attributes her symptoms to, “Beds and pillows on base.” In her written evidence, specifically paragraphs 3 and 4 of her statement, comprising Exhibit 3 in these proceedings, she attributes her symptoms to a number of specific events related to her service. In response, she said, “No, I was explaining that what I had done that day; that nothing in the PT session that I’d do anything that caused me to hit my head or any over-extension of my neck. It was a circuit.”
[31] Principally Exhibit 3, Statement of the Applicant dated 27 June 2016.
Counsel for the Respondent pressed the issue: if the PT session was so unimportant, why does she mention it in her statement,[32] now in evidence before the Tribunal? She said, “I thought it was just a lead-up to what my day was beforehand.” She was then asked that if the incident with her hair being caught was so unimportant, as she now contends, why does it not appear in her statement now in evidence before the Tribunal. She said, “I’m not sure.” She was asked whether she could explain this discrepancy in her evidence. She said, “No, I can’t.”
[32] Ibid.
Conclusion: the eight events
In summary of the above, I have serious misgivings about the evidence supporting each of the events the Applicant claims meet the requirements to be events of trauma to her cervical spine of sufficient severity to meet the requirements of the SoP.
It seems to me that, even on the Applicant’s own evidence, the events of Events 3, 4, 6 and 7 do not appear to meet the base requirements of the SoP because, even if I accept the Applicant’s telling of these events, there is no evidence that the pain they caused lasted at least seven days after each event. Consequently, none of these events can give rise to a finding of liability under the SoPs.
As I noted in my commentary of each individual event, none of the events as told by the Applicant are supported by medical evidence, contemporaneous or otherwise. I find the lack of a contemporaneous record of the injuries the Applicant has purported to suffer a matter of some concern. Frankly, it goes a long way to undermining her claims, especially given that these are not events which occurred decades ago, where records could be lost to the mists of time. Rather, these claims are relatively recent – the oldest was less than twelve years ago.
It was contended on behalf of the Respondent that in such a military setting, if there had been such a discrete event, of such force and with such outcomes, then one would expect to find some type of record or duly recorded episode in the documents. If so, contends the Respondent, the case could be readily resolved.
The problem, as I see it, is that the primary source of evidence about the discrete event and its resulting aftermath comes down to what the Applicant has said and written throughout the evolution of this matter. Despite providing a quite lengthy and detailed history of the circumstances of her various traumas to a Dr Robert Green who, for all intents and purposes, can be regarded as the Applicant’s local medical officer, none of this history has found its way into any report or field of knowledge of Dr Green.
The Applicant has given sworn evidence about the circumstances of the incident resulting in the claimed condition. She has asserted that a series of events occurred while playing sport during her time in military service. Starkly inconsistent with that is her contention in her original claim form that inappropriate bedding was the cause of her claimed back issues.
As well, none of the now propounded history appears in any of the voluminous bundle of military records relating to medical aspects of the Applicant’s period of service in the RAN.
I think there is significant force in the Respondent’s contention that if the Applicant’s now contended history had in fact occurred, why is it that none of that history appears in any of the reports or field of knowledge of medical practitioners who were directly involved in her care: practitioners such as the neurosurgeon, Dr Noel Dan, and the spinal neurosurgeon, Dr William Sears. The absence of the now contended history is extraordinary in circumstances where, for example, Dr Sears performed the following procedure on the Applicant on precisely the physical areas now said to be at the epicentre of this claim:
OPERATIVE DETAILS: Supine with neck mildly extended. Left sided anterior approach to vertebral column. C4/5 disc space identified on x-ray. Longus coli mobilised. Caspar distracting pins were applied to the C4 and C6 vertebrae. A routine anterior discectomy, decompression and fusion was done at the C5/6 level with the aid of a high-speed air-drill and fine curettes/rongeurs. The degenerate contents of C4/5 disc space were then removed. The cartilaginous end-plates were removed at both levels and the bony end-plates squared off to create a 7mm high space for the disc prosthesis at C4/5 and an 8mm high space for a PEEK Globus cage at C5/6. A 15mm x 15mm M6 disc prosthesis was inserted into the prepared disc space under x-ray guidance. The Globus cage was gently impacted after filling it with cancellous bone graft, harvested from the left anterior iliac crest & mixed with a very small quantity of BMP2. A Zephir titanium locking plate further secured the C5/6 segment. Final x-ray appearances were satisfactory.[33]
[33] Exhibit 12, T Documents, T 21, p 104.
Dr Sears had earlier described the Applicant’s symptoms as having “been present for 4 months” as at 28 July 2014.[34]
[34] Ibid, T 20, p 103.

To my mind, it does the Applicant’s credibility no favours to have a situation where a significant level of medical care is being applied towards treatment of her symptoms about which she initially complained in March 2014 yet none of those medical practitioners were told about the now propounded service-related causative factors behind the claimed condition. To the extent that they have, it appears they have been told very different versions of events to the one the Applicant is now propounding.
Perhaps more telling is the specific stage in the evolution of this matter at which the now propounded history emerged. As mentioned earlier, the Applicant lodged her claim for compensation on 3 November 2014 relating to 3 categories of conditions or injuries. In its initial determination of 11 February 2015, the Respondent accepted the first two categories but rejected the third - “cervical spondylosis”. This determination was affirmed by the Respondent on 17 August 2015. The currently propounded history relating to the Applicant’s football playing as a primary causative factor only transpired during the period 24 May 2016 and the hearing of this matter in August 2017. In the course of Dr Peter Steadman’s medico-legal examination of the Applicant, she produced a certain journal article entitled “Soccer causes degenerative changes in the cervical spine”.[35]
[35] Exhibit 11.
For the purposes of the hearing before me, the evidence purportedly supporting the Applicant’s contentions came from herself, her friend, Ms Bree Jordan and the consultant orthopaedic surgeon, Dr Jason McDarra. The primary value of this evidence for the Tribunal lies not in establishing whether the now propounded football-derived events actually occurred. Rather, the totality of the Applicant’s evidence must convince the Tribunal, on the balance of probabilities, that the terms of the relevant SoP have been met.
Additionally, I am aware of the beneficial nature of veterans’ compensation law.[36] Simply, the absence of medical evidence does not automatically undermine an Applicant’s case. However, this does not always equate to a blank cheque being written for Applicants in such matters. It is still necessary for the Tribunal to be satisfied that the claimed injury is, on the balance of probabilities, connected with an Applicant’s service. In the present context, this necessitates an analysis of the veracity of the evidence before the Tribunal, especially when the versions of events propounded by the Applicant are so different to those propounded by medical evidence. I will now do so.
[36] See, eg Hill v Repatriation Commission [2004] FCA 832.
The Applicant’s explanations for her lack of supporting medical evidence
At the commencement of her cross-examination, the Applicant was provided with a copy of the statement upon which she principally relies.[37] She agreed that the statement sets out, in comprehensive terms, her history of complaints, culminating in this claim. She agreed that in her statement, she recounted incidents arising from either her football playing career, or her work/military duties and that such recollections were accurate.
[37] See Exhibit 3, Statement of Julie-Ann Gordy dated 27 June, 2016.
Counsel for the Respondent then took the Applicant to various incidents that the Applicant records in her statement. The first of those, according to the Applicant, occurred in November 2009. She agreed that as a result of this incident, which arose during a game of soccer, she suffered certain symptoms which, according to her statement, lasted for a couple of months. In particular, she confirmed that the neck symptoms she says arose from this incident were associated with a game of soccer in which she was participating. She said that she recalled being injured during that soccer game and that she suffered quite debilitating symptoms for two months. She also agreed the symptoms caused her to lie down, to use heat packs and to take painkillers.
It was then put to her that there is not a single mention of any such symptoms arising from any soccer match (or other event) in her medical history. The Applicant agreed with that suggestion and said “There is not.”
The Applicant also agreed that the military services provide free medical treatment to their participating members and that she frequently availed herself of that treatment. Yet, she was not able to explain why an event, as significant as this, which apparently resulted in symptoms that persisted for two months, has not found its way into her medical records. The Applicant’s response was not convincing. She said, “I also tore my hamstring in that game, but I didn’t go for that either.” This evasive and unsatisfactory answer was not accepted by Counsel for the Respondent, who pressed his original question. Eventually, the Applicant agreed that this apparently serious incident in November 2009 did not find its way into her medical records. She added that, “I did not go to the medics,” and that with specific reference to this incident that caused her two months’ worth of pain and discomfort, she said, “I just self-managed with what I thought was right.”
The point was further pressed by Counsel for the Respondent, who put it to the Applicant that it was stretching the bounds of credibility for the Tribunal to accept that she did not avail herself of free medical treatment that was readily available to her for symptoms of this magnitude. Her unconvincing response was, “Because I was used to getting injuries and I thought it was just my neck, self-massage and heat, Neurofen – I thought it would just release, just as I did with my hamstring.”
The Applicant conceded that it was unlikely that an incident giving rise to a history of two months’ worth of symptoms is something that she would be likely to forget. In a similar way, she said that it is not likely that someone would forget the other symptoms described in her statement.
The Applicant was then referred to the claim form she submitted, giving rise to her initial claim for compensation.[38] She agreed that this claim form, dated 15 October 2014, is the claim form she in fact submitted. She was then taken to another part of this claim form and specifically directed to the answer she gave to question 16 in that form. That question asks: “List all the injuries or diseases you are now claiming or previously accepted injuries or diseases which have become worse.” She agreed that her response to this question comprised: “1 ankle recon, 2 compartment syndrome; 3 C4/5-C5/6 slipped discs.”[39] The Applicant agreed that there was ample mention of her ankle injuries and ankle surgery throughout her medical records. Likewise, with her complaint about compartment syndrome, otherwise known as shin splints.
[38] See Exhibit 12, T Documents page 39.
[39] Ibid, T 7, Page 41.
Consistent with this evidence, the Applicant was then referred to a further document appearing in the T Documents, entitled “Injury or disease details sheet.”[40] The Applicant agreed that (1) she did in fact complete this form on 28 October 2014; and (2) that her completion of this form clearly indicated she could draw a connection between the asserted ankle injury and her activity in playing Australian Defence Force soccer.
[40] Ibid, T 8, Page 43.
Also consistent with this evidence, the Applicant was referred to a further “Injury or disease details sheet.”[41] This claim form related to the compartment syndrome, or shin splints, condition. The Applicant agreed that she was readily able to draw a clear connection between her activities and duties as part of the military service and the condition she was describing in this form. In this form, the Applicant stated that the causative evidence could be found as a result of her “Marching on hard surfaces, Running on hard surface. Performing Guards. Slamming the heel of my feet into the ground while conduct Parades at the Australian Federation Guard.”[42]
[41] Ibid, T 9, Page 45.
[42] Ibid.
The Applicant was then referred to a further “Injury or disease details sheet” appearing in the T Documents.[43] Here, the Applicant described the symptoms relating to her neck condition. Those symptoms manifested in, “Extreme pain in neck, Down Right up (sic). Pins and needle/Numbness down Right arm and into the Palm, Thumb & Index finger.” It was put to the Applicant that according to the history she recalls in her statement, one would expect to see some reference to or account of a soccer injury or incident giving rise to this injury. The Applicant agreed with that suggestion.
[43] Ibid, T 10, Page 47.
However, Counsel for the Respondent noted that in this form, in response to the question, “How do you believe your service caused, contributed to or aggravated this injury or disease?”, she responded with, “Bed’s and Pillows on base. Injury happened while asleep on base.”[44] The Applicant agreed that she did in fact write this answer.
[44] Ibid.
She was then asked to reconcile what she has written with both her oral and written evidence which involved an elaborate, lengthy and well-recollected history of neck injuries while she was playing soccer. The Applicant responded with this, “Because, when I presented and spoke with my doctor about it, I asked him how this happened and what caused it, and his response was: ‘It’s probably because of the beds and the pillows’ so I, that’s… (sic) I went off what Dr Green had said to me. I didn’t know any of the other… to write all that other stuff in there.” When asked why she had not written “all that other stuff in there,” she responded with, “Because I’m an Able Seaman who’s got no instruction from no one on how to write any of these things up.”
The incredulous nature of her answer was sought to be made clear to her by Counsel for the Respondent, who specifically asked her if she was seriously telling the Tribunal that she somehow put to one side her long history of neck injuries, neck pain, neck stiffness on the strength of what a doctor said may have caused that line of symptoms? The Applicant replied with, “Yes, because I respected him and he was in a position of knowledge where I am not.” This response seemed at odds with her response to the next question of whether she had told Dr Green of her long history of neck problems. She replied with, “I have, yes. Dr Green is not my only doctor throughout my military career. So no, he wouldn’t have been the only doctor who has access to my medical records who helped me like this.”
Counsel for the Respondent, rightly to my mind, asked the Applicant to think more carefully about his question, with particular reference to what she had said in her oral and written evidence. The Applicant was asked to confirm whether or not her evidence was that she told Dr Green about her long history of having suffered neck symptoms/neck stiffness as a result of or arising from her soccer career. She replied with “Yes, I have told him that I do play soccer and I have had these types of injuries.”
The Applicant was then asked why, if this is what she had told Dr Green, was it the case that he reached the view that her neck symptoms are due to the beds and pillows on the military base where the Applicant resides? She responded with, “No, that’s not what I’m saying. I’m saying that’s what he said has probably pushed it through.” The matter was pressed further, and the Applicant was asked to tell the Tribunal why there was no reference to a lengthy history of soccer-derived injuries in this document. The Applicant tepidly replied with, “I can’t explain that”.
The Applicant was then referred to an Outpatient Clinical Record appearing in the T Documents.[45] The specific record bears the date 20 March, 2014. It says:
Patient started having neck and shoulder pain at 1 am this morning. This
woke patient up and patient didn’t really get back to sleep.
Patient history: minor neck pain and headaches not like this.[46]
[45] Ibid, T 11, Page 64.
[46] I have paraphrased these medical notes for ease of reference. This paraphrased version was put to the Applicant in cross-examination, who accepted its accuracy.
The Applicant accepted that she did give this history to the treating medical officer. It was then put to her that this history is significantly different to that appearing in her oral and written evidence. She responded with, “Well, that pain that I had then was extraordinary – like I felt my arm was on fire. I’ve never felt that pain before.”
It was then put to the Applicant that what she had said to this particular medical officer about her neck pain and headaches in the past was completely at odds with her evidence to the Tribunal. She responded with, “Yes, because turning your head to the left was more painful, but nothing like that.” In my view, this response goes nowhere near answering the asserted deficiency in the Applicant’s evidence.
The Applicant was then referred to a document referred to as “Initial assessment/treatment.” The document was prepared by the Watson Health Clinic on 25 March 2014.[47] In this document, there is a record of “pt [patient] has been having some neck pain for the last week – just woke up with it. Pain has gotten worse in the last week.”[48] It was put to the Applicant that there is no mention in this medical record of any lengthy history of neck pain associated with her soccer career. She conceded as much. She was asked to explain that shortfall in her evidence, and responded with, “No I can’t.”
[47] Ibid, T 13, Page 91.
[48] Ibid.
Counsel for the Respondent then took the Applicant to an MRI report prepared by Castlereagh Imaging at Edgecliff, New South Wales.[49] The Applicant agreed that this document was produced following a medical investigation of her cervical spine. She was asked whether it was the first time she had ever undergone such a procedure, and she said, “No…I have had it [an MRI] on my spine before, but that was when I was a kid.”
[49] Ibid, T 11, Page 65.
The evidence reveals that this MRI report was most likely prepared at a stage of the Applicant’s symptomatology that involved her being referred to a neurosurgeon in relation to the issues she was raising about her neck. The consultant neurosurgeon that the Applicant saw was Dr Noel Dan.[50] The Applicant was referred to Dr Dan’s report of 9 April, 2014, and, in particular, to the first two paragraphs of his report. Interestingly, the Applicant must have told Dr Dan something of her involvement in soccer, because in the first paragraph of his report, Dr Dan records, “She was a keen soccer player.” Then in the next paragraph, Dr Dan recounts the history of her symptoms. It was put to the Applicant that nowhere in this particular paragraph of his report (recounting the history of her symptoms) is there a reference to a lengthy history of neck pain. She responded with, “Nope.” She was asked to explain the absence of such a history, either in this paragraph of Dr Dan’s report, or in any other part of the report, and she responded with, “I presume he was first going off the immediate injury, the immediate pain.”
[50] Ibid, T 14, Pages 93-94.
The Applicant has attended a consultation with a medical practitioner who specialises in treating exactly the kind of neck problems she has described. It is to stretch the bounds of credibility for her to assert she has a clear recollection of the connection of those neck problems with her soccer playing activities, when there is no mention of any connection of association between her neck symptoms and her playing of soccer in the history she provided to a medical specialist such as Dr Dan. She eventually conceded that there was no reference to any association or connection between her neck problems and her soccer playing activities.
Dr Dan saw the Applicant for a second time shortly after the first consultation. He produced a report, dated 14 May 2014.[51] The Applicant was referred to this report that appears in the T Documents and she conceded that there is no reference to any lengthy history of neck pain, nor any connection between that pain and her playing of soccer.
[51] Ibid, T 15, Page 95.
The Applicant’s consultations with specialist neurosurgeons then progressed to her attending a consultation with Dr Williams Sears[52], a spinal neurosurgeon, on 28 July, 2014. Once again, the Applicant was referred to Dr Sears’ report and asked to identify any part of it that contained any lengthy history of neck symptoms, to which she responded with, “Okay.” She was asked to explain the absence of any such history in the report and she responded with, “I didn’t write it, he did.”
[52] The relevant report of Mr Sears appears at Exhibit 12, T Document 11, pp 74-75. I note his letterhead records him as “Mr.” William Sears, rather than “Dr.” William Sears. I will nevertheless refer to him as Dr Sears.
Further reference was made to Dr Sears’ report by Counsel for the Respondent. In particular, Counsel referred her to the first two sentences on the second page of the report, which reads, “I talked to Ms Gordy about the nature of the degenerative changes shown in her scans and the prognosis for the neck and arm symptoms. They have now been present for four months and it would seem likely that the problem will persist indefinitely with conservative management.”[53] It was put to the Applicant that in her evidence to the Tribunal, she said she had been suffering from neck and arm symptoms from as early as 2009. Yet, in 2014, Dr Sears reported that her symptoms, “…have now been present for four months.” She was asked whether she gave that specific four month history to Dr Sears. She responded with, “I told him about the present stuff, that four months – yes.”
[53] Exhibit 12, T Documents, T 11 p 75.
It was then put to her why she didn’t tell Dr Sears about her earlier and lengthier claimed history of neck symptoms or anything of that sort? She responded with, “Because I was…I didn’t know that it was applicable, I was just talking about what was happening right now.” She was asked to reconsider her answer about whether provision of that asserted lengthy history to Dr Sears was, “applicable.” She responded with, “No.” Counsel for the Respondent then challenged her as to whether she was being serious with providing such an answer, to which she replied, “I am, yes.”
Counsel for the Respondent then further explored precisely what history the Applicant had provided to either or both of the neurosurgeons, Dr Dan or Dr Sears. For example, she was asked whether she had never experienced a sharp pain down her head and neck all the way to her arms and fingers prior to March 2014. She said, “It happened once, but it was when I landed on my back.” Noting that she had experienced this symptom on an earlier occasion, she was asked why she didn’t provide this history to any of the neurosurgeons. She said, “I thought it was a shoulder one, because I landed on the point.” Counsel for the Respondent queried this answer, because, according to her evidence to the Tribunal, she did have contemporaneous problems with her neck and it is a stark inconsistency in the medical evidence that there is no mention of her reporting such neck problems. She explained it with the answer, “I didn’t think it was related.”
She sought to ameliorate her evidence about the symptoms regarding radiation of pain down the side of her head, neck and into her arm by saying that although these symptoms existed contemporaneously with her neck symptoms, the former symptoms only “lasted for a second… give or take… I didn’t have a watch on.”
The Applicant was then referred to a member statement that she prepared on 3 November 2014, relating to an injury sustained to her ankle while representing the Australian Defence Force’s soccer team at a national soccer carnival in New Zealand.[54] She conceded that she had no difficulty in forming a connection between her ankle injury, as described in the statement, and her soccer career.
[54] Ibid, T 35, pages 138-139.

She made a similar concession in relation to a member statement that she also prepared on 3 November 2014, relating to pain in her shins and calves while playing soccer for the Navy at the Australian Defence Force national soccer carnival.[55] Once again, she conceded that she had no difficulty in making the necessary connection between these stated injuries and her soccer career.
[55] Ibid, T 36, pages 140-141.
The Applicant was then referred to her third member statement in this sequence, specifically, her “Member statement for Neck.”[56] An initial point noted by Counsel for the Respondent, but not pressed by him, was that this particular member statement was not signed or dated by the Applicant (or anyone on her behalf), compared to the other two member statements, which were both signed and dated by her. The Applicant was invited to read through this third member statement. It was put to her that there was “not a shred of a mention of any association between neck problems and your soccer career in there, is there?” to which she replied: “no”. It was further put to her that, “It’s all referable to the first onset of neck symptoms as being in March of 2014, isn’t that so?” She replied, “In my statement it is, yes.”
The other evidence before the Tribunal
[56] Ibid, T 34, Pages 136-137.
Dr Jason McDarra, consultant orthopaedic surgeon
I have, earlier in these reasons, expressed a view as to whether the factors in the relevant SoP are made out. It is also necessary to discuss the medical evidence to ascertain the extent to which the medical evidence assists in convincing the tribunal that the factors in the relevant SoP are or are not made out.
Dr Jason McDarra provided three reports in this matter. The first is dated 5 August 2016,[57] the second is dated 2 September 2016,[58] and the third is dated 14 February 2017.[59] The main thrust of Dr McDarra’s diagnosis is that the Applicant has experienced continuous micro-trauma and that this, in turn, has had some kind of adverse impact on her. At the same time, Dr McDarra notes and agrees that the Applicant does have a constitutional degenerative condition. As observed by Counsel for the Respondent, Dr McDarra seems to be articulating a symptomatology that is found in mainstream worker’s compensation cases. Dr McDarra seems to be postulating that the nature and conditions of the work (and associated duties) of the Applicant have, over time, conspired to produce the symptoms that she now propounds.
[57] See Exhibit 6.
[58] See Exhibit 7.
[59] See Exhibit 8.
The difficulty with Dr McDarra’s evidence is that he was not able to bridge the gulf between what the Applicant says she recollects in her statement compared to what she has historically told the medical people. Dr McDarra’s evidence falls far short in terms of giving context, credibility and reliability to the Applicant’s evidence such that she could remotely meet the strict conditions appearing in the relevant SoP.
Associate Professor Peter Steadman, consultant orthopaedic surgeon
The Tribunal also received evidence from Associate Professor Steadman at the hearing. For the purposes of these reasons, I have had recourse to Associate Professor Steadman’s evidence in an effort to locate at least one documented event or episode in the Applicant’s medical history that could serve the purpose of fulfilling the various criteria in the relevant SoP.
This has proved a futile exercise, because I have not been able to locate any such document, incident or circumstance. This position is endorsed by Associate Professor Steadman, who conducted a holistic review of the Applicant’s medical history and arrived at a finding that “It can only be said from the radiological reports that she suffers from spinal degeneration. Most of this is likely to be constitutional.”[60] Associate Professor Steadman is of the view that, there was a stark absence of any documentary evidence of any event or incident that could convincingly be said to fall within the scope of the relevant SoP.
[60] Exhibit 11.
Associate Professor Steadman conceded that the Applicant had undergone an operation for neck pain. He was of the view that the occurrence of the prolapse and what prompted the neck surgery can also be regarded as part of the natural progression of the Applicant’s constitutionally degenerative cervical spine. However, the overwhelming weight and trend of his evidence was that there was no recorded event or incident necessary to meet the requirements of the relevant SoP.
Ms Bree Jordan
Ms Bree Jordan provided a statement in these proceedings. It comprises Exhibit 4 and was made on 1 February 2017. Ms Jordan also attended the hearing and gave oral evidence.
I found her evidence both unconvincing and unreliable. Her written statement seems to record specific items or themes that also appear in what the Applicant said in her own statement, comprising Exhibit 3 in these proceedings. Any prospect of improvement or augmentation of Ms Jordan’s written evidence was not, to my mind, achieved by her oral evidence.
Ms Jordan told the hearing that she arrived in Australia as part of the New Zealand Defence Force soccer team in or about November 2009. At this time, Ms Jordan had not met the Applicant. In her written statement, she deposes to specifically recalling a single tackle on a single player (the Applicant) in a single match. She recalls the tackle in some detail: that it was from behind, that it caused the Applicant to land on her back, that it caused the Applicant to hit her head hard and that the Applicant, “…got up slowly and continued with the game after a bit of a stretch and rest.”
It was put to Ms Jordan in cross-examination that this level of recollection of a single tackle on one player in one game is extraordinary, in circumstances where, on her own evidence, she had not even yet met the Applicant. Ms Jordan then sought to ameliorate her evidence by telling the Tribunal that she in fact had fleetingly met the Applicant because, says Ms Jordan, the carnival organisers had scheduled a, “meet and greet,” session between players and officials of the teams competing in the tournament. According to Ms Jordan’s evidence, she had, “briefly met,” the Applicant at such a “meet and greet,” session, shortly after she arrived at the carnival.
Ms Jordan had no effective or credible response to the question that she must have witnessed dozens, if not hundreds, of football matches, each with its own number of controversial tackles and other incidents, yet could remember this particular tackle in one match on a particular player that she barely knew. This, some seven years after the event.
Ms Jordan then sought to further ameliorate this aspect of her evidence by telling the Tribunal that, although they were only (at best) fleeting acquaintances in November 2009, she and the Applicant did form a closer bond in the form of a personal relationship later on. It is because of this personal relationship, says Ms Jordan, that she can now (and in her written statement) recall the specific tackle on the Applicant in November 2009. I have serious misgivings about the credibility and veracity of this evidence.
Under cross-examination, Ms Jordan said it was the Applicant who approached her about providing this statement. She was specifically asked about who brought up the subject of the tackle from November 2009: she or the Applicant? Ms Jordan said she was unable to recall who brought it up, but that it, “could have been,” the Applicant. I again have misgivings about the inconsistency of this evidence. If, as she now contends, the tackle on the Applicant in November 2009, perpetrated as it was on a person who became near and dear to her, was still so stark in her memory, why is it that she cannot now recall who suggested inclusion of this incident in her statement?
I am also discomforted by the convenient similarities and commonalities appearing in Ms Jordan’s statement, with that which appears in the Applicant’s. Ms Jordan tells us of the Applicant’s, “headaches and neck pain that was continuing,” and of the Applicant, “…lying in bed with heat packs on her neck and had just taken painkillers to ease the pain and discomfort she was in.” [61]
[61] See Exhibit 4, Statement of Bree Jordan, dated 1 February, 2017, paragraph [7].
In her oral evidence, Ms Jordan said the Applicant had notified her that (1) she was dissatisfied with the medical treatment she had received from the medical corps and that (2) she would now be seeing privately retained medical specialists instead. In re-examination, Ms Jordan said that although she had some recollection of being told those two things by the Applicant, she had no recollection about what sort of specialists the Applicant would be seeing and what category of injuries or symptoms those specialists would be treating and/or reporting on.
Taken in total, I am of the view that Ms Jordan’s evidence, although well-intended, is more a story of one friend coming to the aid of another, rather than being reliable, accurate and independently verifiable evidence that can reasonably be accepted or relied upon by the Tribunal. Her oral and written evidence about a single tackle event in a single match, that occurred almost seven years previously on a player she barely knew, if at all, cannot make any meaningful contribution to the Applicant’s case.
CONCLUSION
In consideration of the above evidence, I have serious misgivings about the Applicant’s claims. Of the eight events which she refers to in trying to apply the relevant SoP to her conditions, the majority – even taken at their highest – cannot support the requirements for the Applicant having suffered “trauma to the cervical spine” as defined in the SoP.
However, in present circumstances, and looking holistically at her case, it would be inappropriate to take the Applicant’s versions of those events at face value. While medical evidence is consistent with the Applicant suffering from cervical spondylosis, the best view of that evidence is that the Applicant’s condition is a constitutional and degenerative one, not one that was caused by trauma.
Even if that were not the case, there were no medical records of any of the events the Applicant claims. The lack of corroborating evidence for this condition lies in stark contrast to the other conditions which the Applicant has suffered from – often suffered in the same events which she purports to have caused her cervical spine trauma – where the Applicant has shown a willingness to seek medical attention for physical injuries and illnesses. In light of this, I am unable to accept that the Applicant could have suffered from cervical spine injuries as she describes and either not sought medical attention for them, or had a series of medical professionals fail to note them.
An additional issue for the Applicant’s case is, simply, that there are significant issues with her credibility as a witness. As is evident from her cross-examination, the Applicant was at times evasive and elusive as a witness. There are significant inconsistencies in her oral and written evidence, as well as across the various forms she has submitted. Even if I were to disregard the weight of medical evidence that lies in opposition of her claims, the Applicant’s evidence itself is sufficiently shaky ground that a case cannot be safely built upon it.
In consideration of the above, I am not reasonably satisfied that the Applicant’s cervical spondylosis satisfies the requirements of the relevant SoP. It follows that the Applicant’s claim must be rejected and the decision under review affirmed.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.....................[sgd]...................................................
Associate
Dated: 11 May 2018

Dates of hearing: 29-30 August 2017

Counsel for the Applicant: Michael Honchin

Solicitors for the Applicant: Purcell Taylor

Counsel for the Respondent: Charles Clark

Solicitors for the Respondent: Moray & Agnew Lawyers

[4] Exhibit 12, T Documents, T14, Medical report of Dr Noel Dan, Neurologist, dated 9 April 2014, p 93.

[2018] AATA 1265

11 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Causation

Procedural Fairness

Statutory Construction

Standing

Dates of hearing:	29-30 August 2017
Counsel for the Applicant:	Michael Honchin
Solicitors for the Applicant:	Purcell Taylor
Counsel for the Respondent:	Charles Clark
Solicitors for the Respondent:	Moray & Agnew Lawyers