GOSLING and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2010] AATA 642

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 642

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3606

VETERANS' APPEALS  DIVISION		)
Re		ADAM GOSLING

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date26 August 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd]...........................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Claim for acceptance of liability by the Military Rehabilitation and Compensation Commission of L5/S1 intervertebral disc prolapse with right sided sciatica as a service injury – Application of Statement of Principles – Claimed condition not caused by service – No aggravation of the condition by service – Acceptance of liability for temporary aggravation of condition not covered by Statement of Principles - Decision under review affirmed.

Military Rehabilitation and Compensation Act 2004 (Cth) ss 5, 6, 23, 27, 29, 31-36, 319, 335, 339, 353, 355
Veterans’ Entitlement Act 1986 (Cth) ss 196B
Administrative Appeals Tribunal Act 1975 (Cth) s 27
Workers Compensation Act 1958 (Vict.)

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593

REASONS FOR DECISION

26 August 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1. Adam Gosling served in the Royal Australian Navy (RAN) from 30 April 2007 until 3 October 2008. On 27 October 2008, he claimed, in accordance with s 319 of the Military Rehabilitation and Compensation Act 2004 (Cth) (the MRCA), acceptance of liability by the Military Rehabilitation and Compensation Commission (the MRCC) for “slipped disc” and “sciatica”. Mr Gosling alleged these were service injuries related to incidents which occurred on 24 June 2008 and 6 August 2008. On 6 March 2009, the MRCC denied liability under the MRCA for “L5/S1 intervertebral disc prolapse with right sided sciatica” on the basis of any incident on 24 June 2008. It accepted liability for “aggravation of the signs and symptoms of pre-existing L5/S1 intervertebral disc prolapse with right sided sciatica” from an incident on 6 August 2008. The decisions were affirmed in a reviewable decision on 16 July 2009.

ISSUES AND LEGISLATION

2. The matter comes before the Tribunal in accordance with s 27 of the Administrative Appeals Tribunal Act 1975 (Cth) and s 355 of the MRCA. It is not disputed that Mr Gosling rendered defence service in the form of peacekeeping service under the MRCA[1].  The MRCC must accept liability for an injury sustained by Mr Gosling if the injury is a service injury[2].  This is defined to include an injury which resulted from an occurrence that happened while the person was a member rendering defence service or which arose out of, or was attributable to, any defence service rendered by him[3].  It also includes an aggravation of an injury by defence service rendered by a member after he sustained the initial injury[4].  Liability will not be accepted if any of the exclusions set out in the MRCA is applicable[5].  In this matter, it is common ground that none of these exclusory provisions apply. 

[1] See s 6(1) of the MRCA.

[2] See s 23(1) of the MRCA.

[3] See ss 23(1), 27(a) and 27(b) of the MRCA.

[4] See ss 5(1), 27(d) and 30 of the MRCA.

[5] See ss 31 – 36 of the MRCA.

3.      The decision concerning liability is to be made to the Tribunal’s reasonable satisfaction[6].  In so deciding, the Tribunal is to accept liability only if a relevant Statement of Principles published by the Repatriation Medical Authority[7] upholds Mr Gosling’s contention that the claimed condition is, on the balance of probabilities, connected with that service[8].  The relevant Statement of Principles in this matter is Instrument No 40 of 2007[9].  Where there is no relevant Statement of Principles, the matter is to be determined under the general principles of causation under the MRCA[10].

[6] See s 335(3) of the MRCA.

[7] In accordance with s 196B of the Veterans' Entitlements Act 1986 (Cth).

[8] See s 339(3) of the MRCA.

[9] As amended by Instruments No’d 80 of 2008 and 38 of 2010.

[10] See s 335(4) of the MRCA and n 2 and 3.

SUBMISSIONS

4.      Mr Kent, for Mr Gosling, provided a written submission and also summarised his contentions.  He wrote that Mr Gosling’s “injury was sustained from an occurrence that happened while [Mr Gosling] was a member rendering Defence Service”, that it “arose out of the original box lifting incident in June 2008, being further aggravated by the second incident in August 2008” and that it was not necessary to show that there was aggravation to any substantial degree so long as there was some contribution, even to a small degree, from an occurrence that happened while Mr Gosling was rendering Defence Service.  Mr Kent submitted that the incident on 6 August 2008 caused a change to the underlying pathology in Mr Gosling’s spine which amounted to an aggravation of the initial injury dating from the incident on 24 June 2008. 

5.      Mr Clark, for the respondent, submitted that, in accordance with the requirements of the Statement of Principles, there was no evidence that Mr Gosling’s intervertebral disc prolapse was caused by the performance of his duties in the RAN on 24 June 2008 or that, apart from a temporary aggravation of signs and symptoms, it was aggravated by such duties on 6 August 2008.

EVIDENCE

Mr Gosling

6.      Mr Gosling provided statements dated 28 October 2008, 7 October 2009 and 27 April 2010.  He also gave oral evidence.

7.      In his first statement, he wrote that, on 24 June 2008, he was lifting a heavy box, that he felt pain in the right side of his back and down his leg and that he went straight to his doctor who ordered an MRI scan which revealed a small protrusion at the L5/S1 level of his spine.  He also wrote that, on 6 August 2008, he was ordered to pick up a large block, that he felt sudden severe back and right leg pain and that he again went straight to see his doctor who gave him pain killers and told him to see specialists and a physiotherapist. 

8.      In his second statement, Mr Gosling wrote that he first saw a doctor about his back on 25 June 2008, that he was sent away with Panadeine Forte and Codapone, that he was granted medical leave from 26 June until 7 July 2008, and that he then drove himself to Queensland’s Gold Coast where he stayed at his mother’s house.  He wrote that his fiancée, Vanessa Anglem, also stayed there with him.  Mr Gosling wrote that he was bed-ridden while there and was looked after by his mother, Donna King, and Ms Anglem.  He wrote that, during his leave, he returned to Sydney with Ms Anglem who drove the vehicle because of his back pain, that he again attended a doctor on 30 June 2008, and that, after a few days together on the RAN base, he and Ms Anglem returned to the Gold Coast where he stayed either in bed or on a couch at Ms King’s house, until he returned to duty in Sydney.

9.      In his third statement, Mr Gosling referred to the two incidents, describing the latter as the more severe.  He also wrote that, after discharge from the RAN, he saw a medical practitioner who said that he could not understand how he was allowed to be discharged from the RAN with such a back condition. 

10.     In his evidence, Mr Gosling agreed that he had not immediately attended a doctor when he felt pain on 24 June 2008 but that he did so on the following day.  He accepted that he had reported gastroenteritis at the time but said that the main purpose of attending the outpatient facility was related to back pain and that he had advised the doctor that the pain was “killing” him from his neck through his spine to his leg.  He confirmed that he had been in terrible pain while at his mother’s house in June and July, that he was bed-ridden while there but had not sought medical treatment on the Gold Coast.  Mr Gosling denied that he had attended a night club while he was at the Gold Coast.  On being shown a reference, in a medical report dated 8 July 2008, to his having attended a night club on the previous Saturday night where he “passed out”, Mr Gosling said that he did not recall doing so and that, if he had been to a night club, he would have been sitting down because of his back.  He could not recall having passed out in a night club at that time. 

11.     Mr Gosling had wanted to leave the RAN in 2008 and looked to serving either in the Army or in the police service.  He agreed that, after communicating this to his superiors, he underwent a psychological assessment in May 2008 which resulted in a finding that his retention was not in the interests of the Navy (RNIN).  He agreed that he had referred to Ms Anglem’s health problems and Ms King’s financial situation as reasons for his wanting to leave the RAN. 

12.     Mr Gosling was referred to a clinical note, dated 25 June 2008, where there is a reference to his having “lifted weight yesterday at work”.  He said that this would have been a reference to his attendance at a gym where he had been lifting weights.  Later, in his evidence, he denied that he been doing so but had been doing stretching exercises in the gym.  He said that he had told the doctor that he had been lifting boxes. 

13.     Mr Gosling expressed dissatisfaction with the way in which he was examined by Dr Peter Steadman on 9 November 2009.  He said that Dr Steadman’s examination lasted only five minutes and included a particularly painful manoeuvre where Dr Steadman stood behind him, placed his hands together on top of his head and pressed downwards thereby painfully compressing Mr Gosling’s spine. 

14.     Mr Gosling said that he was on restricted duties when, on 6 August 2008, he attempted to shift the heavy block.  He said that the Petty Officer who ordered him to move it was aware that he was not permitted to lift heavy items.  He said that he obeyed the order without thinking about his back condition. 

15.     Mr Gosling agreed that he advised a doctor, in a consultation on 8 July 2008, that he had experienced back pain “for months”.  He also agreed that he had not attended appointments, arranged by the RAN, with a specialist practitioner and a physiotherapist prior to his discharge from the RAN.

Vanessa Anglem 

16.     In her statement, dated 9 October 2009, Mr Gosling’s fiancée wrote that Mr Gosling arrived at his mother’s house on the Gold Coast after driving from Sydney with the complaint of severe back pain from his leg to his neck.  She wrote that he was able only to lie down and rest or watch television and needed assistance with showering and meals.  She returned to Sydney with him so that he could see a doctor, stayed with him at the RAN base until she was advised that she needed to move off base.  She then accompanied him back to the Gold Coast where she resumed looking after him until he finally returned to Sydney at the end of his leave.

17.     In her evidence, Ms Anglem confirmed that she had some health problems some 2 to 7 days before Mr Gosling came to the Gold Coast in June 2008.  She said that there were no personal issues between them and that she was not aware that he had wanted to leave the RAN in 2008.  She said that she was with him for most of the time when he was in his mother’s house in June and July 2008.  She denied that he had consumed alcohol and, as far as she knew, had not attended any night club during that period.  She believed that his pain levels would have prevented him from doing so.

Donna King 

18.     In her statement, dated 9 October 2009, Mr Gosling’s mother wrote that he came to her home in June 2008 on medical leave, that he was not active at all, that he spent the whole time watching television in constant pain, that she and Ms Anglem looked after him and that Ms Anglem accompanied him to Sydney where they stayed for a few days before returning to the Gold Coast.

19.     In her evidence, Ms King said that she had not suggested that Mr Gosling leave the RAN or indicated that she wanted him nearer to her rather than away in Sydney.  She said that, before he came to the Gold Coast, she had been unaware of any issues that would make him consider leaving.  However, while he was in her home, he advised her that he didn’t like the RAN and wanted to enlist in the Army or join the police service.  She said that, despite Mr Gosling’s pain levels, she had not considered that he should get medical assistance locally.  She said that her employment involved night shifts and she was not aware of Mr Gosling’s movements during that time.

Service Records 

20.     Mr Gosling’s service medical records were in evidence.  They reveal many consultations with RAN medical personnel.  In May 2008, these include complaints of constipation and bloating on 12 May, a shaving rash on 14 May and gastritis on 26 May.  On 26 May 2008, he is also noted to have had thoughts of self harm and harm to others as well as increased alcohol consumption and difficulty with anger management.  Further, he is described as having external stressors from his family and girlfriend and as wanting to leave the RAN.  On 27 May 2008, the stressors are detailed as involving health concerns for his girlfriend on the Gold Coast and financial difficulties for his mother who wanted him to be nearby.  A Divisional interview was conducted by an RAN Lieutenant to whom Mr Gosling advised that he wanted to leave the RAN and to whom he detailed the external pressures on him.  A senior psychologist reported on 27 May 2008 that Mr Gosling was not suited to remain in his present RAN role.  On 27 May 2008, for non–medical reasons, a psychological assessment was recommended to assess Mr Gosling’s suitability for the RAN.  A further report was then completed by an RAN psychologist who recommended, on 12 June 2008 that Mr Gosling be discharged RNIN. 

21.     On 25 June 2008, Mr Gosling attended an outpatient clinic and was examined by Dr S Low.  The clinical note reports that he complained of vomiting and diarrhoea.  He is also noted to have “backache lower lumbar” and the entry reads:

L Spine:  movement full range but dull constant pain in lumbar spine.  He was lifting weight yesterday at work after lunch.

The only diagnosis recorded at that time was a provisional one for acute gastroenteritis.  Panadol and Imodium were prescribed and he was granted 2 days off work. 

22.     On 8 July 2008, Mr Gosling presented at an outpatient clinic with low back pain.  The note of that day includes the following:

LBP 1½ wks.  No specific incident.  States was lifting boxes....2/52 ago.  Was on Gold Coast with parents relaxing.

Was on L/S to start with and now on R/S. Pain aggravated by sitting for long periods, hurts on walking.  Pain radiates down R leg.

That note also describes pain and tenderness over the right quadratus lumborum and some loss of range of movement is referred to.  It records a soft tissue irritation, possibly quadratus lumborum, as well as facet joint irritation and continues:

C/o dizziness felt unwell after attending a night club on Gold Coast. Passed out. Last Saturday.  Felt sleepy since.

The note describes a lot of alcohol on Saturday night with commencement at lunch time and finishing on Sunday morning. 

23.     A further clinical record, made on 9 July 2008 by Dr Low, reads:

Lower lumbar backache for 2 weeks related to lifting boxes up and down stairs....Pain localised to R lower lumbar spine this now L lumbar spine.  Occasional radiation to the legs.  Pain is constant.  No pain at night. 

That note also describes limited range of movement in extreme range in all directions. 

24.     On 30 July 2008, Mr Gosling was examined by Dr Dunstan whose clinical note includes a reference to low back and right leg pain “for months”.  Medication for this is described as Feldene, Panadeine and Codofone.  It identifies the need for an MRI scan and also directs “restricted duties, no lifting, twisting etc”.

25.     Mr Gosling was seen again by Dr Dunstan on 6 August 2008.  The clinical note describes him as having picked up a “step block” without thinking and experiencing sudden severe pain.  Mr Gosling’s medication is noted to be Panadeine Forte and Codofone.  A further note, dated 22 August 2008, by Dr Dunstan refers to an MRI scan and to L5/S1 R disc prolapse.

26.     Dr Dunstan completed a further report on 29 September 2008 in which he noted that appointments had been made for Mr Gosling to attend a physiotherapist and a medical specialist before his discharge, that he had not attended these and that he had not rebooked appointments. 

27.     Mr Gosling’s service records indicate that he was granted War and Annual leave from 26 June to 7 July 2008 and from 24 July to 4 August 2008 and was absent because of illness from 6 to 8 August 2008.

Examination results

28.     An X-ray, requested by Dr Low on 9 July 2008, was conducted on 14 July 2008.  It would seem to be unremarkable in the context of Mr Gosling’s claimed condition[11].

[11] This was conceded in Mr Kent’s written submission. 

29.     An MRI was conducted on Mr Gosling on 5 August 2008.  It described minor Schmorl’s nodes at T12/L1, L1/2, L2/3 and L3/4.  It described the L4/5 disc as showing reduced T2 signals and posterior bulge and concluded:

Small protrusion is seen at the L5/S1 slightly indenting the sac towards the right of midline.  The sacroiliac joints are normal.

30.     A further MRI scan was conducted on 16 November 2009.  It described mild degenerative disc disease at L4/5 and at L5/S1 as well as small right paracentral disc protrusion at L5/S1. 

31.     Dr Ethel Ooi completed a Departmental minute in January 2009 and entered a diagnosis of intervertebral disc prolapse.  Dr Ooi completed a second minute, dated 27 February 2009, and described a disc prolapse on 24 June 2008 and a reinjuring of Mr Gosling’s back on 6 August 2008.  She noted that he was placed on work restrictions after each incident.  She referred to the second incident and concluded that this did not involve an aggravation of the underlying pathology but would only be an aggravation of signs and symptoms.

Medical evidence 

32.     Reports were provided by orthopaedic surgeons Dr Peter Steadman, dated 9 December 2009, 9 April 2010 and, 11 June 2010 and Dr Alan Hopcroft, dated 26 August 2009, 8 December 2009, 20 January 2010 and, 5 May 2010.  They also gave oral evidence.

33.     Dr Steadman examined Mr Gosling on 9 November 2009.  He said that he took three pages of detailed clinical notes during the allocated consultation period which was of 1 hour and 15 minutes in duration.  He described as “outrageous” any suggestion that his consultation lasted for only five minutes.  Dr Steadman applied the Waddell's tests to ascertain whether there was a non-organic or psychological component to Mr Gosling’s back pain.  He described one test as requiring the examinee to place his own hands on the top of his head and to press downwards.  Dr Steadman said that his unvarying policy is that he does not apply the pressure himself and did not do so with Mr Gosling.

34.     In his first report, Dr Steadman described a non-physical contribution to Mr Gosling’s participation in the assessment.  In his evidence, he confirmed that the extent of symptoms displayed by Mr Gosling at examination did not accord with the MRI scan taken in August 2008.  Dr Steadman said that it was difficult to assess Mr Gosling because of his behaviour at the examination and ordered a second MRI scan.  This was done on 16 November 2009.  Dr Steadman described the two MRIs as not being greatly different with degeneration at two different levels in the spine ie. L4/5 and L5/S1.  Dr Steadman concluded that a problem at two levels in the spine meant that Mr Gosling was suffering from constitutional degenerative disease rather than intervertebral disc prolapse.  He also noted the presence of Schmorl’s nodes in the first MRI and said that this excluded a diagnosis of intervertebral disc prolapse in certain discs.  Dr Steadman conceded that the second scan may have indicated a slight increase in the initial abnormality but he considered that this was not really significant.  His opinion was that there was a temporary aggravation on 6 August 2008 of constitutional degeneration in the sense that he experienced increased symptoms but that this would be resolved after a period in the order of three months.  Dr Steadman said that disc protrusion is relatively common in the community[12] and, apart from trauma, can be attributed to a wide range of activities of daily living such as sneezing, coughing or vomiting.  He agreed that it would be less likely in a man of Mr Gosling’s age if his disc degeneration were isolated to a single disc.  However, he said that, in Mr Gosling’s case, it was not so limited.

[12] Dr Steadman said that up to 40% of the population may reveal disc abnormality on MRI testing and cited Cheung et al, “Prevalence and Pattern of Lumbar Magnetic Resonance Imaging Changes in a Population Study of One Thousand Fort-Three Individuals” 34 SPINE 9 pp 934-940  (which was annexed to his report of 9 April 2010).

35.     Dr Steadman said that he had read Dr Hopcroft’s reports and noted his conclusion that it was unlikely that Mr Gosling would have had a full range of movement on 24 June 2008.  However, Dr Steadman disagreed and indicated that he would prefer the contemporaneous clinical notes of 24 June 2008 rather than a retrospective assessment of capacity.  He considered that the clinical note which recorded a full range of movement in Mr Gosling’s spine, a day after the incident on 24 June 2008, made it difficult to substantiate that he suffered sufficient trauma to cause a back injury.  Dr Steadman’s opinion was that the incident described in that clinical note on 24 June 2008 did not satisfy the requirements of experiencing a trauma in the Statement of Principles.  He considered that there was no contribution to Mr Gosling’s spinal condition from his military employment.

36.     Dr Hopcroft saw Mr Gosling on 26 August 2009.  He said that he could not recall whether there was any exaggeration of symptoms by Mr Gosling when he was being examined.  Dr Hopcroft said that he considered the history given by an examinee to be vital in assessing the course of an injury and its effect on the person.  He relied on Mr Gosling’s account that he was unable to bend, do up his shoes or even sit normally at the time of Dr Low’s examination.  He also recorded Mr Gosling as telling him that the reason for his leaving the RAN was the back injury and he agreed that this influenced his opinion of the severity of the back condition at the time.  He noted that Mr Gosling was put off work for two days after he hurt his back following the lifting of boxes and that this occurred before the X-ray was taken on 14 July 2008.  He nominated, in his report of 26 August 2009, the date of the injury as 6 July 2008 but this would seem to be a reference to 24 June 2008 when the incident with the boxes occurred. 

37.     Dr Hopcroft diagnosed damage to L5/S1 discs with right sided discal protrusion and right sided sciatica.  His opinion was that Mr Gosling suffered a significant injury in June 2008 as a result of lifting boxes.  He denied the probability of Mr Gosling having a full range of movement of the spine in the 24 hours after the incident when he was seen by Dr Low.  Dr Hopcroft considered that this reflected a loss of range of movement which was consistent with the MRI scan taken on 5 August 2008.  Dr Hopcroft’s opinion was that the second incident involving Mr Gosling’s back on 6 August 2008 resulted in a second injury superimposed on the pre-existing changes in Mr Gosling’s back which were related to the incident on 24 June 2008.  He described the second injury as serious and as resulting in a clinical worsening of the original injury.  On that basis, he considered that the second incident aggravated the original injury.

CONSIDERATION 

38.     For the purposes of Statement of Principles, the term intervertebral disc prolapse means:

protrusion, herniation or rupture of the nucleus pulposus or annulus fibrosis of an intervertebral disc into the vertebral canal of the cervical, thoracic or lumbar spine, causing:

(i)        local pain or stiffness;

(ii)       clinical evidence of nerve root compression; or

(iii)      clinical evidence of spinal cord compression[13].

This definition excludes bulging of the intervertebral disc and Schmorl’s nodes.

[13] See clause 3(b) of Instrument No 40 of 2007.

39.     I have noted Dr Steadman’s reservation about the diagnosis of intervertebral disc prolapse in the presence of Schmorl’s nodes.  However, there is no reference to Schmorl’s nodes in Mr Gosling’s second MRI scan and the condition is not noted to be present at L4/5 or L5/S1 in the first MRI scan.  Dr Hopcroft diagnosed intervertebral disc prolapse at L5/S1.  That was also the opinion of Dr Ooi.  I am reasonably satisfied that Mr Gosling suffers from intervertebral disc prolapse at the L5/S1 level of his spine.

40.     For the incident on 24 June 2008, Mr Kent relied on causation factor (a) of the Statement of Principles.  For the incident on 6 August 2008, as I understand his submission, he relied on causation factor (h) thereof.  These factors and the associated definition read:

(a)having a trauma to the relevant disc within the 24 hours before the clinical onset of intervertebral disc prolapse; or

…

(h)having a trauma to the relevant disc within the 24 hours before the clinical worsening of intervertebral disc prolapse; or

"a trauma to the relevant disc" means an injury, including G force-induced injury, to the affected intervertebral disc that causes the development of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of that part of the spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the relevant disc has occurred and that medical intervention involves either:

(a)immobilisation of that part of the spine by splinting, or similar external agent;

(b)injection of corticosteroids or local anaesthetics into that part of the spine; or

(c)       surgery to that part of the spine;

41.     There were substantial inconsistencies in Mr Gosling’s evidence such that I am satisfied that he was an unreliable witness.  He did not, as he claimed in his statement of 28 October 2008, report to a medical practitioner immediately after the incident on 24 June 2008 and was sent for an MRI.  He first attended Dr Low on the following day.  An MRI scan was not called for at that time as this was by Dr Dunstan on 30 July 2008 with the scan being completed on 5 August 2008.  Mr Gosling described himself as being bed-ridden when he was at his mother’s house at the Gold Coast.  That was also the evidence of his mother and fiancée.  Yet, he was able to drive from Sydney, albeit with stops along the way, to the Gold Coast on his own and is recorded as having advised a doctor on 8 July 2008, after he had returned to Sydney with Ms Anglem, that he had been to a night club on the previous Saturday on the Gold Coast.  There are differing accounts of the extent to which Mr Gosling consumed alcohol while at his mother’s house.  The reasons he gave to RAN personnel for wanting to leave the RAN involved his mother and fiancée but these were not confirmed in their evidence.  When giving evidence about lifting weight at work, Mr Gosling immediately claimed that he had been lifting weights in the gym.  He then said that he was not lifting weights but had been doing stretching exercises in the gym.  Subsequently, he denied that he had been in the gym.  His evidence about the five minute duration of the examination by Dr Steadman and of the head-pressing exercise was in stark contrast with Dr Steadman’s accounts.  In that regard, I accept Dr Steadman’s evidence and note that he had taken three pages of clinical notes and expressed his policy of always requiring examinees to conduct the head-pressing test themselves.  Mr Gosling gave differing accounts to doctors of the duration of his back pain and, on 30 July 2008, his description of “months” of low back pain would mean that the back problem predated 24 June 2008.  He told Dr Hopcroft that he was put off duty for 2 days after seeing Dr Low on 25 June because of his back and that he left the RAN because of his back pain.  Mr Gosling’s evidence that, in stooping to lift the heavy block on 6 August 2008, he acted “without thinking” is inconsistent with him experiencing the high levels of pain that he claimed he was suffering at the time.

42.     Mr Gosling saw Dr Low on 25 June 2008.  He complained of low back pain.  However, Dr Low’s clinical notes show that the main reason for Mr Gosling’s attendance was the vomiting and diarrhoea associated with a gastro intestinal problem.  Only one provisional diagnosis was made by Dr Low and this was for gastroenteritis.  No diagnosis was made for a back problem.  That lack of diagnosis is consistent with the clinical finding recorded by Dr Low that Mr Gosling had full range of movement in his spine at the time.  It is also consistent with the ability of Mr Gosling to drive alone from Sydney to the Gold Coast shortly after he saw Dr Low.  Dr Low relieved Mr Gosling from work for 2 days but that entry is given with the provisional diagnosis and I am satisfied that it related to his gastroenteritis and not back pain.

43.     The next medical record is that of 8 July 2008, some 14 days after the incident with the boxes.  The name of the practitioner is unclear but it was not Dr Low or Dr Dunstan.  Back pain is noted but the symptoms recorded are of pain aggravated by sitting for long periods and on walking.  There is some loss of range of movement but Mr Gosling is described as being able to bend to reach his knees and soft tissue irritation is noted.  This does not reflect a level of incapacity which would require Mr Gosling to be “bed-ridden” as he claimed.  It was at this consultation that Mr Gosling is recorded as advising that he had attended a night club on the Gold Coast on the previous Saturday, which was 5 July 2008, and had passed out due to excessive alcohol consumption.  Again, such attendance is not consistent with his being bed-ridden while at his mother’s house.  Ms King did not recall his attendance at a night club but she worked in the evenings and was not aware of Mr Gosling’s activities at night.  Ms Anglem said that she was unaware of Mr Gosling attending a night club but that is not consistent with Mr Gosling’s account in the medical record.  On the following day, Mr Gosling saw Dr Low who, on this occasion, recorded a limited range of movement as well as constant pain in the lower back and also made a provisional diagnosis of lumbar disc lesion.

44.     I am satisfied that, on 25 June 2008, the complaint of back pain by Mr Gosling was a secondary issue only.  No diagnosis of a back problem was made by Dr Low.  Nevertheless, his back was examined by Dr Low and, unlike the result of Dr Low’s subsequent examination on 9 July 2008, Mr Gosling was noted to have full range of movement.  No reference is made to altered mobility at that time.  I do not accept the opinion of Dr Hopcroft that Mr Gosling must have displayed altered mobility and/or loss of range of movement at that time.  They were not noted by Dr Low and were not the main reason for Mr Gosling attending for treatment.  I accept the opinion of Dr Steadman that the contemporaneous medical record is more reliable than one based upon an account given to Dr Hopcroft by Mr Gosling, especially in light of the unreliability of Mr Gosling as a witness as demonstrated by the inconsistencies in his evidence as noted above and the false history that he gave to Dr Hopcroft about being put off work because of his back pain and of leaving the RAN because of his back problem.  As noted above, Dr Hopcroft was influenced by this incorrect history as provided by Mr Gosling. 

45.     In relation to factor (a) in the Statement of Principles, intervertebral disc prolapse was not diagnosed in Mr Gosling until the results of the MRI on 5 August 2008 were obtained.  However, it may have been inherent in the provisional diagnosis of lumbar disc lesion by Dr Low on 9 July 2008.  This is well after the 24 hour time-frame required in factor (a) for clinical onset.  Moreover, there is no medical evidence of altered mobility or range of movement in Mr Gosling’s spine during the 10 days after the incident with the boxes on 24 June 2008 as required by the definition of trauma to the relevant disc in the Statement of Principles.  The attendance at a night club was on the eleventh day after the incident with the boxes.

46.     I am satisfied that the requirements of factor (a) of the Statement of Principles are not met in respect of the incident on 24 June 2008 and that, accordingly, intervertebral disc prolapse is not a service injury in respect of that incident in Mr Gosling.  In so doing, I have noted Dr Steadman’s evidence of the wide range of everyday activities which may be causally associated with the development of intervertebral disc prolapsed including vomiting, of which Mr Gosling complained when he saw Dr Low on 25 June 2008.  I have also noted his reference to collapsing at a night club on 5 July 2008.

47.     Dr Hopcroft diagnosed a worsening of Mr Gosling’s intervertebral disc prolapse due to the incident on 6 August 2008.  As already noted, in assessing the symptoms of Mr Gosling’s back condition and the severity of symptoms, he relied on the account of events given by Mr Gosling.  In his evidence, he said that he had no recollection of whether Mr Gosling exaggerated his symptoms.  On the other hand, Dr Steadman gave clear evidence of the symptoms displayed by Mr Gosling and concluded that they were not consistent with the MRI records.  His evidence was that there was no significant difference between the MRI results taken before and after the incident on 7 August 2008.  For a condition to have been aggravated by defence service, it must have been made worse by some aspect of that service and not simply become worse[14].  I am satisfied that, in that sense, there was no aggravation of the injury due to the incident on 6 August 2008 in accordance with factor (h) of the Statement of Principles.

[14] See Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593 in the context of the Workers Compensation Act 1958 (Vict.)

48.     Although I have determined that an underlying constitutional condition in Mr Gosling’s back was not aggravated by the incident on 6 August 2008, Dr Steadman noted an increase in symptoms which, in his opinion were temporary in the sense that any service-related effects would be resolved after a period in the order of three months.  That was also the opinion of Dr Ooi.  The decision under review was the acceptance of liability for “aggravation of signs and symptoms of pre‑existing L5/S1 intervertebral disc prolapse with right sided sciatica”.  An increase in symptoms without a worsening of an underlying condition is not the subject of any Statement of Principles and, in the absence thereof, the issue is whether that increase in symptoms is a service injury in that it resulted from an occurrence that happened while Mr Gosling was a member rendering defence service or which arose out of, or was attributable to, any defence service rendered by him[15].  As I understand the decision under review, the MRCC accepted liability on that basis.  I am satisfied that is the correct decision.

[15] See ss 23(1), 27(a) and 27(b) of the MRCA.

DECISION

49.     The decision under review is affirmed.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: ............................[Sgd].................................................
              Kate Slack, Research Associate

Date/s of Hearing  5 August 2010
Date of Decision  26 August 2010
Counsel for the Applicant         Mr David Kent
Solicitor for the Applicant          Mr Jeremy Roche, Attwood Marshall Lawyers
Counsel for the Respondent     Mr Charles Clark
Solicitor for the Respondent     Mr Phil Nolan, Sparke Helmore Lawyers