Hartree and Comcare
[2005] AATA 405
•5 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 405
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/374
GENERAL ADMINISTRATIVE DIVISION ) Re DESMOND HARTREE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms G Ettinger - Senior Member Date5 May 2005
PlaceSydney
Decision
The decision under review is affirmed.
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation - Veteran – injury 1960 - claim under 1930 Act in 2003 – whether prejudice to the Commonwealth – mistake - other reasonable cause - medical issues argued - decision affirmed
LEGISLATION
Commonwealth Employees’ Compensation Act1930 – 1956 ss 12(1), 16(1)
Safety, Rehabilitation and Compensation Act 1988 - ss 123A, 124CASE LAW
Re Muras and Department of Defence (1998) 52 ALD 579
Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328
Australian National Airlines Commission v Cassidy (1964) 110 CLR 172
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665
Commonwealth of Australia v Connors (1989) 86 ALR 247
Telstra Corporation Limited v Roycroft (1997) 77 FCR 358
Re Loft and Comcare (1996) 52 ALD 606
Secretary of the Department of Defence v Gorton (2000) 98 FCR 497REASONS FOR DECISION
5 May 2005
Ms G Ettinger - Senior Member
1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”), was the decision of the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs, dated 8 September 2003 (T8), and affirmed by a reviewable decision dated 8 March 2004 (T16).
2. In the decision of 8 March 2004, the Delegate accepted that the incident in which the Veteran, Mr Desmond Hartree injured his back while servicing his Land Rover on 25 November 1960, had occurred, and that notice had been given of the injury, but refused the claim on the basis that the claim for compensation was dated 19 June 2003, some 43 years after the date of injury, and did not therefore, comply with the requirements of section 16 of the Compensation (Commonwealth Government Employees) Act 1930 - 1956, (“the 1930 Act”).
3. The Delegate also held that the medical evidence before her failed to establish there was liability of the Commonwealth to pay compensation to Mr Desmond Hartree in connection with the injury to his back which occurred on 25 November 1960, during his service.
4. The Applicant was represented by Mr D Murray of the Returned Services League, and the Respondent, Comcare, by Mr G Elliott of counsel briefed by Phillips Fox Lawyers.
ISSUE BEFORE THE TRIBUNAL
5. The issue to be decided in this matter is whether Mr Hartree is entitled to be paid compensation for injuries to his back which occurred while servicing his Land Rover, on 25 November 1960, during his military service.
6. In order to decide this, and because Mr Hartree did not make a claim for compensation until 19 June 2003, approximately 43 years after the incident, I had first to decide whether the discretion to allow consideration of the claim pursuant to section 16 of the 1930 Act, should be exercised.
LEGISLATIVE CONTEXT
7. The relevant legislation in this matter is the Commonwealth Employees’ Compensation Act1930 – 1956 (“the 1930 Act”), in particular sections 12(1), 16(1) which follow as relevant:
“12.(1) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule opposite the specification of the injury in the first column.
16(1) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –
(a) within six months from the occurrence of the accident; or
(b) in case of death – within six months after advice of the death has been received by the claimant:
Provided always that –
(i) the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii) the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.
(2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
(3) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.”
8. I had also to consider the transitional provisions pursuant to sections 123A and 124 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”).
“PART X - TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS AND REPEALS
Division 1 - Preliminary
…
SECT 123A
Injuries suffered before the commencing day
123A. A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.
Division 2 - Transitional provisions
SECT 124
Application of Act to pre-existing injuries
124. (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act-under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) in any other case-under the 1971 Act as in force when the injury, loss or damage was suffered.
…”
EVIDENCE BEFORE THE TRIBUNAL
9. Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (“the T-documents”) were accepted into evidence as Exhibit R1. There was a supplementary report of Dr B Trevitt, orthopaedic surgeon, dated 1 October 2004 as Exhibit R2, the clinical notes of The Medical Centre, Merrylands, New South Wales as Exhibit R3, and the clinical notes of the Great Valley Medical Practice, Green Valley, New South Wales as Exhibit R4. A CT scan of Mr Hartree dated 13 November 1987 was Exhibit A1.
EVIDENCE OF MR DESMOND HARTREE – THE APPLICANT
10. Mr Hartree whose date of birth is 10 January 1939, enlisted in the Australian Army on 3 October 1958. His Certificate of Discharge at T3, dated 18 October 1961, indicated the reason for discharge, which was that Mr Hartree’s period of engagement had expired.
11. Mr Hartree who gave oral evidence before the Tribunal, told me that on 25 November 1960, when he was servicing his Land Rover, he was struck in the back when one of the open doors of the motor vehicle blew shut in a gust of wind. He said that he lost consciousness, regained it briefly, went across the road to the driver’s office to lie down, and could not get up. He said that this occurred over a period of some 30 minutes, when he lost consciousness again. He said that an ambulance was called, and he was conveyed to hospital where he remained for 11 days.
12. Mr Hartree said that he had x-rays, and was told by a doctor that he had a fractured spine. He said that he found out only two years ago that his back had not in fact been broken.
13. Mr Hartree said that after 11 days in hospital, he gradually improved, although he was still sore. On return to his duties, Mr Hartree said that he did light duties for some two weeks, and then returned to full duties. He said that some six to eight months later in 1961, he collapsed. He said that his lower back pain at L5, would come and go. His back was sore, he said, but he was generally able to do everything. However, now and then he would lose all ability to stand up, and he would just “go down”. The only thing which saved him from serious injury, he said, was that he had strong arms. Mr Hartree said that one such incident took place in 1961, at a time when he was not on military duty. He said that he had been fishing, and ended up breaking his finger.
14. Mr Hartree said that he had lumbo-sacroiliac pain for which he sought medical assistance in May 1961, and in August 1961.
15. Mr Hartree said that after discharge, he worked in a forestry environment, with a shovel and rake, and also doing clerical duties. He did design engineer work, he said, and still suffered pain. He said he found helping his wife make the bed difficult, and still “went down” unexpectedly from time to time without warning.
16. Mr Hartree said that he changed jobs, and in the late 1980s, found his back very painful, because he was required to drive a lot. It was getting worse, he said. Mr Hartree said that his general practitioner from approximately 1980 to 1990 was Dr Clayton of The Medical Centre, Merrylands.
17. The Applicant said that by the early 1990s, his pain was consistent, his legs would collapse, and he had more falls, and a numb feeling. He said that he even contemplated suicide. He said that he modified his work travel schedule, and obtained a car with better lumbar support. Mr Hartree said that in 1994, because his wife was very concerned, he took three months long service leave, and things improved. He sought a change of employment. He said that, accordingly, since 1999, although he still collapses from time to time, and has days with pain, things have stabilised.
18. In reply to questioning regarding why he had waited until 1993 to make a 1960 injury known to the authorities, Mr Hartree said that at 22 he thought he was “bullet proof.” He said he believed the doctors who told him that he had a fracture, and that it would heal. He also referred to the culture and ethic of the times, which meant you would have to be dead before you took a sickie. He said that while he could get to work, he went to work.
19. Mr Hartree said that he never forgot the day of the accident on 25 November 1960, and that he had had intermittent back pain for 40 or so years. He said that Dr Ellis had recorded this. (T12 dated 19 January 2004).
20. Mr Hartree agreed that he had not given written notice of the accident, and had made no claim for compensation until recently, stating that there had been no briefing given on entry into the Army, and that he did not know about compensation even being available. Mr Hartree said that he was certain the authorities would have had to make a report regarding his accident.
21. When asked whether he had attended doctors between discharge and November 1987, Mr Hartree indicated he had attended at practices in Merrylands (1968 – 1988), and Green Valley, from 1991 to the present. He replied to questioning in relation to the lack of entries in the medical notes with regard to back pain, by saying that he had been obtaining medication for his back pain over that period.
22. Mr Hartree was asked in cross-examination why he did not make a claim after he attended the practice at Merrylands for his back, and knew he had lumbar problems following a CT scan in 1987. He replied that it was not the sort of thing he did. He said that he fell again in 2001/2, and learnt about his rights to compensation through the RSL, finally making a claim on 19 June 2003.
23. Mr Elliott asked Mr Hartree about his consultation with Dr D Rail, a neurologist, (Exhibit R4), dated 19 July 2001 Dr Rail had not recorded a history of 40 years of pain. However Mr Hartree said that he had given that history to Dr Rail’s assistant.
24. When asked why he did not mention to Dr Bartos that he had had back pain for 40 years, or collapsed from time to time, Mr Hartree said that he had gone to the doctor for another purpose, that is, because his feet were numb. However he said that he attended doctors for back pain and took medication, attending The Medical Centre, Merrylands from 1968 to 1988 and the Great Valley Medical Practice, Green Valley from 1991 to the present.
25. Mr Hartree’s ultimate word on why he did not make a claim was that he lived in hope his back would get better. He said that x-rays and CTs did not show up the real problem, and it was not until he had an MRI later on when it became available, that he knew what the real problem was.
SUBMISSIONS AND CONCLUSIONS
26. I must take into account all the evidence, both written and oral, submissions of the parties, legislation and case law to make the correct and preferable decision regarding Mr Hartree’s entitlement to compensation in connection with an incident in which the Applicant injured his back on 25 November 1960. The relevant legislation is sections 12 and 16 of the 1930 Act, and the transitional provisions, section 124 of the 1988 Act.
27. In coming to a decision, I put on record that I was satisfied Mr Hartree is a witness of truth.
28. However, for the Applicant to succeed, I must be satisfied to the requisite standard that the Respondent is not prejudiced by the alleged failure of the Applicant to notify the accident within six months of its occurrence, and that any failure to do so was occasioned by mistake, absence from Australia or other reasonable cause (section 16 of the 1930 Act). I noted that absence from Australia which is a consideration under section 16 of the 1930 Act, was not relevant to Mr Hartree’s case, because he has not been so absent, but that the other indicia required examination.
29. I was satisfied to the requisite standard that the incident occurred at work, and as told by Mr Hartree, namely that the door of the Land Rover on which he was working on 25 November 1960, blew shut, striking him on the back, and causing injury. I accepted also his evidence that this rendered him unconscious, and that he was conveyed to hospital, where he stayed for 11 days.
30. Having accepted that, I had to consider Mr Hartree’s position pursuant to section 16 of the 1930 Act, that is whether his claim could be considered outside of the six months period in which he was required to lodge a claim, and ultimately whether he suffered incapacity as a result of the incident.
consideration of section 16 of the 1930 ACT - THE GIVING OF NOTICE
31. Mr Murray, referring to section 16 of the 1930 Act, acknowledged that there was a notification requirement of any incident with regard to claims for compensation in section 16(1)(a) of the 1930 Act, but submitted that it had been accepted by the Respondent that Mr Hartree had notified of the accident (T16). In any case, it was clear he had notified, Mr Murray submitted, because Mr Hartree had spoken to his supervisors immediately after the accident on 25 November 1960, and further had been visited in hospital by his supervisor. Mr Murray submitted that notwithstanding notice was not given in the form required, the employer knew of the accident at the outset, and accordingly, he submitted, Mr Hartree had given adequate notice as required by the legislation.
32. Mr Elliott made oral and written submissions to the effect that pursuant to the 1930 Act and Re Muras and Department of Defence (1998) 52 ALD 579, notification of the accident as soon as practicable after it happened, and a claim for compensation within six months from the occurrence of the accident were required for the claim to be admitted or entertained. He also submitted that by 1987, Mr Hartree was aware from a CT scan that he had an injury or a disease, and should have at least notified the Respondent or made a claim at that time.Mr Elliott submitted that Mr Hartree had not given notice of the accident in writing, in the form required by the legislation.
33. Mr Elliott referred also to Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328, submitting in regard to section 16 of the 1930 Act that “admit” in the section was pursuant to the abovenamed case intended to be read to mean “entertain” or “consider on the merits”, rather than “grant”. Ellicott J had stated at 334: “The word ‘admissible’ according to the Shorter Oxford English Dictionary means allowable”. I noted further that in Scott-Holland (supra) at 334, Ellicott J had referred to Australian National Airlines Commission v Cassidy (1964) 110 CLR 172, stating:
“In Australian National Airlines Commission v Cassidy (1964) 110 CLR 172; [1964] ALR 780, it was held that the word ‘admit’ in s 16 of the 1930 Act meant ‘entertain’ not ‘grant’. In other words, it meant that the Commissioner should not hear a claim. This connotation of the word is, however, not in dispute in this case. The appellant argued the matter on the basis that ‘admit’ in s 16 meant ‘entertain’.
In my opinion, the Tribunal did not err in law in holding that the two claims relating to physical injury should not have been entertained by the Commissioner’s delegate. The correct interpretation of s 104(12)(b) is that it was intended to ensure that a person who suffered injury whilst the 1930 Act was in force the symptoms of which were then apparent would have no greater right of recovery under the 1971 Act, so far as that right was confined by obligations to give notice and make a claim, than was had under the 1930 Act.
When the words ‘a claim by a person under the 1930 Act was ‘not admissible’ are read in the light of Cassidy’s case I think they mean ‘a claim by a person under that Act would not have been entertained.’”
34. Mr Elliott also referred me to ReWillis v Australian Telecommunications Commission (1989) 19 ALD 665, where I noted the Tribunal held that it had been reasonable for a person in that applicant’s situation not to give notice of his early (1956 & 1957) injuries. It was therefore held in that case, that the applicant’s failure to serve notice of those injuries, and to claim compensation in respect of those injuries within the relevant periods had been occasioned by “reasonable cause” within the meaning of section 16 of the 1930 Act. The Tribunal in that case had therefore held that it was entitled to entertain the applicant’s claim for compensation.
35. I was mindful also of the case of Telstra Corporation Limited v Roycroft (1997) 77 FCR 358, where North J at page 367 in referring to various authorities, stated as follows:
“As these authorities show, there is a thin line between “mistake” and “ignorance”. If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence, as Keely J pointed out in Connors.”
36. I noted Mr Hartree’s evidence that no instruction had been given regarding rights to compensation, and he was not aware when injured that there was an obligation to advise of the injury or to the right to compensation. This was in addition to his evidence that his supervisors knew of his accident, and that he was visited in hospital by his supervisor.
37. I noted from paragraph 24 of Muras (supra), that Deputy President McMahon stated as follows:
“The applicant did not suffer a latent injury. The effects of the motor vehicle accident were frank and immediate. From the very beginning, the applicant was aware of the seriousness of his injuries. He continued to be aware during the six months period, when notice should have been given, and a formal claim should have been made. It is during this six months period that one must look at claims of the existence of mistake or other reasonable cause: Re Willis and Australian Telecommunications Commission (1989)19 ALD 665; 10 AAR 382 at 394. It could not be said in this case that mistake as to the benign nature of the injuries may have caused a want of notice.”
38. I considered Mr Hartree’s case different from that of Muras, because Mr Hartree believed notice had been given of his accident, in that he had been conveyed to hospital by his employers, and because his supervisor visited him there. His evidence was that he did not make a claim because he did not know about claims, and in any case, he understood that he would, in time, recover.
39. I noted also from Re Loft and Comcare (1996) 52 ALD 606, a case where the Applicant did not make a claim until many years outside the six month period specified in the 1930 Act, that the Tribunal found a reasonable cause could be construed pursuant to section 16 of the 1930 Act. Senior Member Dwyer in that case, gave weight to the fact that on the basis of Army medical records and the fact that Mr Loft had been hospitalised and absent from duty, the onus was (based on military instructions), on the medical officers and commanding officers to assist with compensation claims.
40. I noted that Mr Hartree relied on what he reports he was told regarding his back being broken in that incident. In his discharge documents dated 15 September 1961 (T3), it is recorded that Mr Hartree reported “… broken ‘spinal process’ – region 5th lumbar when struck by a swinging vehicle door Dec 1960 …”. At T3/21, recorded in different handwriting, were the words, “back report a L-5 spine 25-11-60 - No bony injury seen. Transitional vertebra at L-5 junction…. No symptoms in back now …”
41. I accepted the accident had been notified, notwithstanding it had not been done formally by Mr Hartree, in writing, in the correct form. I accepted that because Mr Hartree had been conveyed to hospital by ambulance called by persons in the driver’s room to which he had come after the accident, and because his supervisor had visited him during his 11 days in hospital.
prejudice to the commonwealth pursuant to section 16(1) of the 1930 act
42. I moved then to consider whether there was prejudice to the Commonwealth, mindful that prima facie, time limits are specified in legislation so that matters can be attended to in a timely manner, and to ensure that documentation is intact, and witnesses available as necessary.
43. Mr Murray submitted that Mr Hartree had suffered an accident at work, it was known to his employers, and he had been visited in hospital by one of his supervisors. I noted that that had previously been accepted as notification by the Respondent, notwithstanding no formal notification had been given. In any case, having considered both parties’ submissions, I have accepted, as noted above, that notification was given.
44. Mr Murray submitted that Mr Hartree had not made a claim for compensation earlier because he had relied on what he had been told, namely that his condition would improve. He was the sort of person who had accepted that intermittent problems had to be endured, and continued working, seeking assistance from his doctors from time to time. In that regard, Mr Murray directed attention to clinical notes of Dr Clayton dated 1961, whom Mr Hartree consulted for more than ten years. These indicated Mr Hartree suffered sacroiliac pain (T3). In recent years, he submitted, Mr Hartree had realised his back problems were severe, but had not been aware of his rights to compensation until contacting the RSL in 2001/2.
45. Mr Murray submitted that the Respondent was not prejudiced in regard to Mr Hartree’s claim. He submitted the Respondent had not made efforts to obtain evidence, notwithstanding the knowledge of the accident of 25 November 1960, save for the referral of Mr Hartree to Dr Trevitt.
46. Mr Elliott, on the other hand, emphasised that the delay in making a claim had been lengthy, and that there was accordingly, prejudice to the Commonwealth (Muras (supra)). A summary of the Respondent’s submissions follows.
· The delay was 42 years and memories were likely to be affected.
· The Applicant had not identified witnesses to the accident and, given the time lapse, it was impossible for the Respondent to identify any. Witnesses might be old, deceased, or unable to had an independent recollection of the events of the time.
· The Respondent had been deprived of an opportunity of investigating all the circumstances surrounding the alleged accident.
· The diagnosis was controversial and the Respondent had been denied the opportunity of establishing medical facts.
· Due to the great lapse of time the Respondent was unable to investigate and verify other possible influences on the Applicant’s back.
47. In considering the submissions of the parties, I accepted that the diagnosis had been controversial indeed, and that due to the lapse of time, which amounted to approximately 42 years, the Commonwealth would be prejudiced were it to attempt to find witnesses involved in 1960. I was satisfied that even if they were available, it could not be expected that their memories of an event such as the Applicant’s accident on 25 November 1960 would be accurate and of assistance to the Tribunal. I also took into account that even in 1987, when Mr Hartree had lumbar problems investigated by CT scan, and reported upon, he did not make a claim.
48. I therefore find that prejudice as claimed by the Respondent pursuant to section 16(1) of the 1930 Act is made out.
mistake pursuant to section 16(1) of the 1930 act
49. I moved then to consider mistake in the context of section 16(1) of the 1930 Act.
50. In doing so, I was mindful from Commonwealth of Australia v Connors (1989) 86 ALR 247, that Mr Connors’ ignorance of his rights was insufficient as a ground to establish mistake pursuant to section 16 of the 1930 Act. I noted their Honours Northrop and Ryan JJ in Connors (supra), who stated at 250 that:
“From the authorities it is clear that in this context the word “mistake” includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other “reasonable cause”.
51. I was mindful that Connors (supra) stood for the proposition that ignorance alone would not suffice in regard to reasonable cause, and that if Mr Hartree did not know his rights under the legislation, that was insufficient to satisfy “reasonable cause” in section 16(1)(ii) of the 1930 Act. It was his lack of submitting a claim which prevented the claim being made.
52. I was mindful also of Telstra Corporation v Roycroft (supra) where North J in referring to various authorities, stated as follows:
“As these authorities show, there is a thin line between “mistake” and “ignorance”. If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence, as Keely J pointed out in Connors.”
53. I was mindful there was no obligation pursuant to the 1930 Act to notify the Veteran of his rights to claim compensation for injury, and mindful also of Mr Hartree’s evidence that the Army did not provide any instruction in that regard during induction or training.
54. I was satisfied that applying the case law as cited above, Mr Hartree could not establish mistake as a reason for not notifying a claim in time. I moved then to consider whether the late claim could have been due to any “other reasonable cause” pursuant to section 16(1) of the 1930 Act.
whether ‘other reasonable cause’ is established pursuant to section 16(1) of the 1930 act
55. Notwithstanding Mr Murray’s submissions, I noted that ignorance of Mr Hartree’s rights and the law did not constitute mistake.
56. I could not find either that Mr Hartree was able to establish any “other reasonable cause” within the terms of section 16(1) of the 1930 Act.
57. However for the sake of completeness, I have considered the implications of section 12 of the 1930 Act.
consideration of section 12 of the 1930 act
58. I note further, that if liability of the Commonwealth in relation to Mr Hartree’s injury which occurred on 25 November 1960 can be established to my satisfaction, he would be eligible for compensation pursuant to pursuant to section 12 of the 1930 Act, and therefore, via the transitional provisions, section 124 of the 1988 Act.
59. In considering that liability, I took into account Mr Hartree’s evidence, and noted that he spent 11 days in hospital immediately afterward the accident. I was satisfied that a hospital medical entry recorded that he had a fracture of the spine. I was satisfied that Mr Hartree relied on that report, and on what he was told, believing that his back had been broken in that incident. I noted from discharge documents dated 15 September 1961 (T3), that Mr Hartree reported “… broken ‘spinal process’ – region 5th lumbar when struck by a swinging vehicle door Dec 1960 …”.
60. At T3/21, (“Final Medical Board”), recorded in different handwriting, were the words, “back report x-ray L - S spine 25-11-60 - No bony injury seen. Transitional vertebra at L-S junction…. No symptoms in back now …” That indicated Mr Hartree reported no back symptoms on discharge from the Army.
61. I noted also that notwithstanding Mr Hartree’s understanding of what occurred in the accident of 25 November 1960, the hospital out-patient reference sheet at PT3/14 indicated “No bony injury seen. A transitional vertebra is noted at the lumbar sacral junction.”
62. I have also noted the results of the investigation dated 31 May 2001 with findings that: “a spina bifida occulta of L5 is noted which is partially sacralised. A small degree of narrowing of the L4-5 disc space is noted … Mild to moderate degenerative changes are evident at the L4-5 and lumbo-sacral facet joints….”.
63. An MRI scan of 6 February 2004 indicated “mild changes of lumbar spondylosis and apophyseal joint degeneration. No protrusions or nerve root compressive lesions.”
64. The abovenoted indicate Mr Hartree suffers a congenital condition, and has a degenerative lumbar spine.
65. I was mindful also of Mr Hartree’s evidence that he only learnt some two years ago that his back had not been broken.
66. As to establishing liability of the Commonwealth; Mr Murray noted that Dr Ellis’ reports were that of 19 January 2004 at T12, and 11 February 2004, at T14. Dr Ellis had accepted Mr Hartree was a genuine person. Dr Ellis noted that Mr Hartree has degenerative changes in his back at L4-5. He stated that the 1960 injury was difficult to diagnose precisely, opining that it could have been a ligamentous injury, but opining also that the subsequent history of 44 years of intermittent acute attacks of pain and weakness in the lower limbs, and fairly constant low back pain, worse on physical stress, but better after three months of rest, indicated a mechanical lesion. Dr Ellis noted that the hospital record of Mr Hartree’s admission recorded “Fractured transverse arch at L5”, and that Mr Hartree, believing that, did not seek specialist attention for his back until 2003. Dr Ellis also wrote:
“He complains of back pain consistently since his discharge and if there is evidence from treating doctors that confirm this and a continuity of complaint established form his injury on service until now it is reasonable to concede an association between his injury on his service and his present condition.”
67. Mr Murray noted that Dr Trevitt opined in his report of 29 August 2003 at T7, that the symptoms Mr Hartree suffered in May 1961 were unrelated to the injury of 25 November 1960, and that they were consistent with the early evidence of degenerative lumbar disease, finding that Mr Hartree’s symptoms were unrelated to his employment. In his later report dated 1 October 2004, (Exhibit R2), Dr Trevitt stated that Mr Hartree was a “perfectly genuine sincere gentleman”, but opined that his current state was related to a constitutional condition of gradual onset, namely degenerative lumbar disease.
68. Mr Elliott submitted on behalf of the Respondent that any possibility of a fracture having taken place on 25 November 1960 was not supported by the medical evidence and investigations, the MRI in particular. He too referred to the reports of Drs Trevitt and Ellis, submitting that Dr Ellis’ concession that there could be an association between the injury and service was not strong. He submitted the medical evidence indicated Mr Hartree had suffered a soft tissue injury, and in support of that, referred me to PT3/15, which, I noted, has a number of entries for 1961 recording sacroiliac pain, but making no mention of bony or disc injury.
69. Mr Elliott referred to the clinical notes at Exhibit R3, which he said over a three to four year period did not make any reference to lower limb or back pain. Mr Elliott submitted that the first reference to back pain was in 1987, when a CT scan was done. He submitted that even then, degenerative back pain had not yet commenced. He referred to the submission of the Applicant in which Mr Murray suggested that doctors gave prescriptions for back pain without consultations, and without recording those in their notes, submitting that this was an unlikely scenario.
70. Mr Elliott also referred to the report of Dr Rail at Exhibit R4, noting that Dr Rail referred to a “low grade back ache intermittently … on examination lower limb power was normal with intact reflexes and sensations…” .
71. Mr Elliott submitted that the weight of the medical evidence did not support Mr Hartree’s case that his 1960 injury was causally related to his back condition, rather that the condition he suffers is degenerative in origin.
72. Mr Elliott submitted on behalf of the Respondent that any possibility of a fracture having taken place on 25 November 1960 was not supported by the medical evidence and investigations, the MRI in particular.
73. Having considered the submissions of the parties and the evidence, I preferred the submissions of the Respondent, noting that Mr Hartree suffers a congenital condition, spina bifida occulta, and accepted that on the balance of probabilities, he suffered a soft tissue injury on 25 November 1960, and that he has a degenerative lumbar spine. His discharge medical examination indicated he had no back pain at that time. The clinical notes of the general practitioners spanning many years, which were before the Tribunal did not record attendances for lumbar spine conditions or pain, and it was not until 1987 that Mr Hartree had a CT scan of his lumbar spine, and 2003 before he attended at an orthopaedic surgeon.
74. I was mindful that Dr Trevitt opined that Mr Hartree’s symptoms suffered in May 1961 were unrelated to the injury of 25 November 1960, and that they were consistent with a constitutional condition of gradual onset, namely degenerative lumbar disease. He considered that Mr Hartree’s symptoms were unrelated to his employment.
75. I agreed with Mr Elliott that Dr Ellis’ opinion was equivocal. I noted Dr Ellis opined that if a continuity of complaint could be established from Mr Hartree’s injury on service until now, it would be reasonable to concede an association between his injury on his service and his present condition. However I was not satisfied from the documentary evidence, including the medical notes and Dr Rail’s report, that Mr Hartree had had the continuity of complaint to which Dr Ellis referred. In particular, Mr Hartree’s accounts of suddenly collapsing were not substantiated.
76. I was satisfied that Mr Hartree has a strong work ethic, and that he developed and sustained a successful career after discharge from the Army in 1961. I was not satisfied that Mr Hartree’s claims that his injury of 25 November 1960 were causally related to his present condition which is degenerative.
77. For the sake of completeness, and given amendments to the legislation which provide for consideration of disease as well as injury, I also considered whether Mr Hartree had suffered a disease, noting this had been was dealt with by Hill J in Secretary of the Department of Defence v Gorton (2000) 98 FCR 497. I was satisfied from the evidence before me that Mr Hartree suffered an injury on 25 November 1960, as claimed, and not a disease, so I did not further pursue that.
DECISION
78. The decision under review must be affirmed.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger - Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 3 February 2005
Date of Decision 5 May 2005
Applicant’s Representative Mr D Murray
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Phillips Fox Lawyers
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