Kevin Sullivan and Military Rehabilitation and Compensation Commission
[2014] AATA 259
[2014] AATA 259
Division VETERANS' APPEALS DIVISION File Number
2013/2774
Re
Kevin Sullivan
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 1 May 2014 Place Brisbane The Tribunal affirms the decision under review.
.......................Sgd..............................................
Mr R G Kenny, Senior Member
CATCHWORDS
WORKERS' COMPENSATION – Service in the Australian Regular Army – Liability for “lumbar and thoracic spondylosis” accepted under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) – Reconsideration of liability for lumbar and thoracic spondylosis under s 62 of the Act – Revocation of determination – No compensable injury of lumbar and thoracic spondylosis under s 14 of the Act - Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 62
CASES
Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659
Carson and Telstra Corporation [2001] AATA 648
Lees v Comcare [1999] FCA 753
Liu and Comcare [2004] AATA 617
SECONDARY MATERIALS
Jurisdictional Policy Advice No 2005/6 (Determination to cease benefits – impact of “Oudyn” and other recent decisions)
REASONS FOR DECISION
Mr R G Kenny, Senior Member
1 May 2014
BACKGROUND
Kevin Sullivan (“the applicant”) served in the Australian Regular Army (“the army”) from 4 April 1961 until 29 July 1964. He completed a claim for rehabilitation and compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). On 21 September 2010, the Military Rehabilitation and Compensation Commission (“the respondent”) accepted liability under s 14 of the Act for “thoracic and lumbar spondylosis” on the basis that the applicant injured his back when playing in an organised army rugby union match. By reconsideration of own motion[1] on
3 October 2012, the respondent revoked the decision of 21 September 2010 which dealt with both lumbar spondylosis and thoracic spondylosis. The applicant has sought review of that reviewable decision, and it is not in dispute that this review relates to both thoracic and lumbar spondylosis.
[1] See s 62(1) of the Act.
On 12 September 2011, the respondent accepted the applicant’s claim for adjustment disorder on the basis that it developed as a consequence of his spinal conditions. In the reconsideration of own motion on 3 October 2012, the respondent also revoked its decision in relation to adjustment disorder. It was common ground that, in the event that the decision in relation to the applicant’s thoracic and lumbar spondylosis was affirmed, the revocation of the adjustment disorder would also have been properly revoked by the respondent.
EVIDENCE
The applicant
The applicant’s evidence was that the football game in which he injured his back was on 5 April 1963. He experienced pain, left the field and returned about ten minutes later.
He did not attend for any medical treatment immediately after the game but was hospitalised for a back problem on 8 April 1963. He has suffered from back pain ever since the football injury.
In his claim form, the applicant advised that his back condition occurred in May 1963, that no incident report was completed at the time, that he had not ever suffered a similar injury, disease or illness and that he had not ever claimed compensation before for a similar injury, disease or illness. He said that he did not complete the claim form himself but assisted the person who did so by providing relevant information. He agreed that he had signed the claim form including the Declaration that the information in the form was true and correct.
In a statement, dated 5 December 2013, the applicant detailed aspects of the football injury and other incidents where he was injured. These were:
·in April 1963, admitted to 1 Camp Hospital at Yeronga for severe mid back pain (between shoulder blades) after playing rugby union for Defence a day or two prior;
·in March 1973, involved in an accident, as the driver of a trotting sulky, sustaining fracture of skull and right clavicle;
·in March 1979, motor vehicle accident resulting in fracture of pelvis and femur;
·on 19 February 2005, motor vehicle accident suffering whiplash and aggravation of lower back; and
·on 10 October 2008, motor vehicle accident resulting in jolting of neck and pain in lower back.
The applicant said that, as a result of the incident on 19 February 2005, he received a compensation payment of $8,000.
Service Records
On 8 April 1963, the applicant was admitted to hospital and a Patient History Sheet, dated 8 April 1963, gives the following summary:
3/7 ago slipped and struck side of armchair by L knee. No other effects. 1/7 bent down to pick up something and suddenly experienced sharp pain medial to L scapula.
In that record, tenderness was noted near the applicant’s left scapula and movements of the back were described as “limited” and that “lying flat on the L side finds comfort”.
An X-Ray of the applicant’s thoracic spine revealed no abnormality.
A “Report of an Injury or Illness” in May 1963 describes the applicant as having sustained an injury to his shoulder in a football game on 22 May 1963. This was diagnosed as subluxated left acromio clavicular joint and described as being of a “minor nature”.
An entry in his Final Medical Board, dated 24 July 1964, refers to “Back trouble 1963 Brisbane” and includes the notes:
24.5.63 football injury to acromio clavicular joint. X-Ray – minor subluxation of the joint. Statement – no complaints.
…
8.4.63 acute myalgia back resulting from fall. Some hysterical reaction. X-Ray thoracic spine NAD.
The applicant’s service records show that he was discharged from the army on
29 July 1964 on compassionate grounds. The applicant said that this was because his wife had suffered a heart attack. An office minute, dated 17 July 1964, referred to his application for discharge because of his “wife’s ill health” and also an “offer of employment which will afford financial gain”.
Medical evidence
Dr John Fraser, orthopaedic surgeon, completed reports on 27 August 2010 and
22 January 2014. He also gave evidence. Dr Fraser, in his first report, noted that the applicant had a history of a football injury whilst in the army in 1963; that, a few days after the injury, he was hospitalised with acute back pain; that he had experienced no prior back complaints; and that he suffered no other injury at the time. He diagnosed thoracic and lumbar spondylosis. After perusing the applicant’s service medical records and other documents, Dr Fraser completed his second report. He was unable to identify any hospitalisation during the applicant’s army service for a back injury following a football game though he noted a minor back injury to the thoracic spine. Dr Fraser’s opinion was that the applicant’s continuing complaints of back pain after his army service were not associated with that injury. He noted more recent records from the Strathpine Medical Centre, the Royal Brisbane Hospital and the Princess Alexandra Hospital and concluded that the applicant has diffuse cervical, thoracic and lumbar spondylosis which he described as a primary constitutional disorder and idiopathic in nature rather than pertaining to a specific injury. His opinion was that, in the absence of documented evidence of a significant structural injury to the spine during his army service, the applicant’s conditions are unrelated to his army service. Dr Fraser confirmed his opinions in his evidence.
Dr Anthony Cook, psychiatrist, completed a report on 23 August 2011 in relation to a separate claim by the applicant for a psychiatric condition. Therein, Dr Cook recorded aspects of the applicant’s medical history as related to him. In relation to his back, he recorded an injury while playing football in April 1963 and continued:
He stated that, during this game, he was tackled heavily but that he went home after the game and then could not move and had to be admitted to 1 Military Hospital at Yeronga.
He stated that he had been kept immobile in 1 Military Hospital in Yeronga, and that his back had gradually improved, but had been troublesome ever since.
Dr Cook also recorded that the applicant advised him that he had left the army in 1964 because “[i]t was too much for [his] back”.
In evidence was a report from orthopaedic surgeon, Dr Greg Gillett. This was prepared in support of a compensation claim by the applicant following a road traffic accident on
19 February 2005. Dr Gillett wrote that the applicant had a “mechanism of injury… to produce injury involving the supporting structures of the cervical and thoracic spine”. Also in evidence were documents in relation to a compensation claim by the applicant in relation to a motor vehicle accident on 4 March 1979 in which injuries to his hip, leg, patella, face and finger are detailed.
ISSUE AND LEGISLATION
Provision is made in s 62 of the Act for reconsideration of determinations. Relevant in this matter is s 62(5) of the Act which reads:
(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
The issue for consideration is whether the determination relating to the applicant’s lumbar spondylosis should have been revoked under that provision.
SUBMISSIONS
For the respondent, Mr Charles Clark submitted that, after the determination was made, additional material became available to the respondent in the form of army records and clinical notes from medical practitioners and hospitals which showed that there was no basis on which to accept the applicant’s claim. He submitted that the applicant had provided false information to the respondent and that this led to the determination being made in error and that it should, accordingly, be revoked.
For the applicant, Ms Sharon Baker submitted that the applicant had injured himself in the rugby union game on 5 April 1963 and that this was followed by a period of hospitalisation for the condition. She submitted that the applicant suffered an injury which arose out of his service in the army which was compensable under s 14 of the Act.
CONSIDERATION
A determination under s 14 of the Act requires findings that an applicant has given appropriate notice of the injury, made a claim for compensation, was an "employee" at the relevant time and suffered an injury which resulted in incapacity for work.[2]
In Liu and Comcare,[3] the Tribunal noted:
[3]The only time that liability under s 14 can be reconsidered is under s 62. But that is a reconsideration of whether the original determination was correct on its merits and cannot address any issue of cessation of correctly determined liability. A changed determination upon such a reconsideration is a determination that there never was a compensable injury[4]
[2] See Lees v Comcare [1999] FCA 753 at [35].
[3] [2004] AATA 617 at [3].
[4] Citing Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659 at 666-667. See also Carson and Telstra Corporation [2001] AATA 648 at [49] and the Jurisdictional Policy Advice No. 2005/6 (Determination to cease benefits – impact of “Oudyn” and other recent decisions) published by Comcare for the purposes of the Act.
There are many inconsistencies in the versions of events that the applicant has given. These are such that I am satisfied that he is not a reliable witness. In his claim form, he declared that the contents were true and correct. They were not. His denials of similar injuries and of compensation claims were false. He had back injuries in 2005 and 2008. He had a compensation claim in 2005.
The applicant was in hospital on 8 April 1963, a few days after his alleged football injury on 5 April 1963. However, this was for an unrelated incident after he slipped and struck the side of a chair and then bent to down to pick up something. The applicant sustained an injury in a football game on 22 May 1963, but this was not to his back as the diagnosis at that time was an acromio clavicular joint subluxation of a minor nature. I am satisfied that the applicant was not hospitalised during his army service for a football related back injury. The applicant advised Dr Cook that he left the army in 1964 because of his back condition. He is recorded as stating that he left because of his wife’s ill health but also because he had an offer of employment which would afford financial gain. However, the clear evidence is that he was discharged from the army on 29 July 1964 on compassionate grounds.
Dr Fraser, in his first report, was supportive of the applicant’s claim. After he was made aware of the additional service and medical records of the applicant, Dr Fraser formed a different opinion. This was that the applicant’s continuing complaints of back pain after his army service were not associated with the alleged football injury. He described the applicant’s diffuse cervical, thoracic and lumbar spondylosis as comprising a primary constitutional disorder which was idiopathic in nature. He confirmed his opinion in his evidence. Given Dr Fraser’s specialty and his observation of the relevant records of the applicant’s service and subsequent medical documents, I accept his evidence that, in the absence of documented evidence of a significant structural injury to the spine during army service, the applicant did not suffer an injury to his back within the terms of s 14 of the Act. This is a situation in which there never was a compensable injury of thoracic or lumbar spondylosis under that provision.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member .........................Sgd............................................
Associate
Dated 1 May 2014
Date of hearing 11 April 2014 Advocates for the Applicant Sharon Baker and Neville Cullen, Redcliffe RSL Counsel for the Respondent Charles Clark Solicitors for the Respondent Rachel Blake, Dibbs Barker
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