Kuchappan and Comcare
[2000] AATA 417
•30 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 417
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1998/1352
GENERAL ADMINISTRATIVE DIVISION )
Re BRIAN VIJAY KUCHAPPAN
Applicant
And COMCARE
Respondent
DECISION
Tribunal K L Beddoe (Senior Member)
Date30 May 2000
PlaceBrisbane
Decision The decision under review is affirmed.
Decision No. 417/2000 (Sgd) K L Beddoe
Senior Member
CATCHWORDS
COMPENSATION : Personal injury – Traumatic cervical spondylosis – Claim for household services – Whether in course of employment
Safety, Rehabilitation and Compensation Act 1988 – s124(1A)
Compensation (Commonwealth Government Employees) Act 1971 – s27(1), s29(1)
REASONS FOR DECISION
30 May 2000 K L Beddoe (Senior Member)
By a determination dated 24 January 1990 the respondent's delegate determined that the "Department of Defence is not liable to pay compensation in respect of the claim of Brian Vijay Kuchappan for injury to neck and back." (T29)
By a determination notified on 7 July 1995 the respondent admitted liability for "traumatic cervical spondylosis" said to have been sustained by the applicant in 1984. The determination dated 24 January 1990 was revoked (T30).
By a determination notified on 2 June 1998 the respondent referred to claims for compensation, by the applicant, in respect of left great toe, right thumb, and traumatic cervical spondylosis, revoked previous determinations relating to household services and determined to accept liability for:
(a) Domestic Help – 5 hours per week for general household cleaning;
(b) Cleaning of carpets and lounge annually;
(c) Pool cleaning;
(d) Lawn mowing;
(e) Gardening 5 hours per month;
(f) Tree pruning;
(g) Trimming rough area and cleaning fish ponds;
(h) Gutter cleaning twice a year;(i) Air Conditioner cleaning 1 hour twice a year; and
(j) Bin cleaning 4 times per year.
Monetary limits were determined in relation to each service but no issue arises in relation to those limits (T41).
Following the applicant's request for review of the determination relating to household services a delegate acting on own motion (section 62) decided to revoke the determination of 7 July 1995 accepting liability for "traumatic cervical spondylosis" and also revoked the determination dated 2 June 1998 in relation to household services and on review affirmed the determination of 24 January 1990 (T48). The applicant seeks review of this determination.
Because the applicant claims that the relevant incident occurred in 1984 and because of section 124(1A) of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") the relevant statutory provisions as to entitlement are the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act").
Section 27(1) of the 1971 Act provides that the Commonwealth is liable to pay compensation in respect of personal injury arising out of or in the course of employment by the Commonwealth.
Section 29(1) of the 1971 Act provides for an entitlement to compensation under the succeeding provisions where:
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment.
Sub-section 124(1A) of the 1988 Act provides that a person is entitled to compensation under the 1988 Act if compensation was or would have been payable to the person in respect of injury, loss or damage under the 1971 Act in respect of an injury etc suffered before 1 December 1988.
At the hearing in Townsville Mr Pope appeared for the applicant and Miss Ford appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. The Tribunal heard oral evidence from the applicant, three lay witnesses, an Occupational Therapist, an Orthopaedic Surgeon and a Neurosurgeon. Following the hearing the parties have made written submissions.
I make the following findings of fact. On or about 14 November 1988 the applicant lodged a claim for compensation for "injury to neck and back." Injury was said to have occurred "approx Jun 79" while "securing camouflage nets up a tree when the branch I was standing (sic) gave way and I fell onto my back and neck" (T3). An incident report dated 16 September 1988 claims that the accident happened "approx Jun 79" (T27) and a witness statement also says the date of accident was June 1979. That statement is dated 3 March 1989 (T28).
The applicant was born 8 March 1952, enlisted in the Australian Army 15 March 1977 and was discharged 16 June 1995 being medically unfit (T32).
Exhibit B is a statement of evidence by the applicant. He says, on the basis of the statement and his oral evidence that he was in an advance party for an exercise (Exercise Mudlark) near Nowra in June 1979. One of his tasks was to secure camouflage nets. In the course of this work he climbed a tree, lost his footing and fell from the tree landing on his back and shoulder blades according to his written statement. In his oral evidence he said that he landed on his neck in the C5-7 discs area. The applicant's oral evidence did not satisfy me that he did in fact land on his neck. I accept his written statement to the effect that he landed on his back and shoulder blades and that his back hit the ground before his head did. He says he felt pain but did not report for medical attention. Specifically the applicant says that he felt pain in the right side of his neck and that he discussed the incident with a medic (who I understand to be a RAP non-commissioned officer although described as the hygiene officer) but there was no formality beyond that discussion. In so far as the applicant attempted to assert that he fell more than three metres I do not accept that evidence because of my observation of the applicant while he was giving evidence.
He undertook PT training the next day, with pain, albeit the pain in his neck and shoulder was no worse than other parts of his body. I am unclear as to the cause of this pain and it appears to be as a result of extraordinary or unusual physical exertion.
On 12 June 1979 the applicant attended before (I infer) a Naval doctor. Exhibit 7 is a Royal Australian Navy Daily Medical Record dated 12 June 1979. Diagnosis is stated as "Soft tissue trauma." The report states that the medical officer was without medical documents. The history recorded includes the following:
"6/12 ago # of ? R 4th and 5th metacarpal neck.
1/52 ago fell down stairs injury same site ® Canterbury Hosp. – X-Ray – no #'s – crepe bandage (?). Last night inebriated – slept on that hand. Now some pain in 4th 5th metacarpal heads.
O/E ……………….
Tender + neck 4th + 5th M.C. heads
Almost full (range of movement) ………………………"
The applicant was given light duties until 3 July.
Exhibit 6 is an Australian Army "Request for Pathology/X-Ray Investigation" requesting an urgent X-Ray re right hand. The report dated 12 June 1979 states that "there is a fracture of the neck of metacarpal 5 in good position. No other lesion is seen." He was examined by an orthopaedic specialist on 15 June 1979 who diagnosed fracture of the 5th metacarpal and review in two weeks (T4/15).
Exhibit C is a copy of a statement of Edward Hall in which he states that he was the applicant's supervisor (he was the sergeant) during 1978-1979. He says that while on Exercise Mudlark the applicant was putting up camouflage nets and fell out of a tree, landing on his back and, it is said, injuring himself. In his oral evidence Mr Hall said the applicant was probably 3-4 metres off the ground. He also said that he did not see the applicant fall out of the tree but he heard the fall. He says that he reported the incident to a warrant officer but the applicant continued on with his duties although complaining of a "sore back." He denies making an incident report. Notwithstanding his written statement Mr Hall said he was unable to recall the name of the exercise or the date it took place but was certain it had taken place at Nowra.
Exhibit E is a statement by Peter Lynch corroborating the fact of the accident in 1979 at Nowra. In his oral evidence he said that he remembered the incident because he got "my backside kicked" over the incident at the time being the sergeant in charge. Mr Lynch said the applicant hurt his back and head but did not require medical treatment at the time.
The documents before the Tribunal include references to the applicant being involved in fights. There is insufficient material before me to come to any conclusion as to the effect, if any, that fighting may have had on the applicant's claimed conditions.
The Medical EvidencePrior to enlistment in March 1977 the applicant answered an "Entry Medical History Questionnaire" before a medical officer (T4). That document records a claim for compensation for strained right shoulder together with other health problems not presently relevant (T4/11).
Document T4 contains 92 folios of copies of service medical records recording a wide variety of health problems some of which have a relevance to the claim for compensation. Before dealing with particular documents it is apparent to me that the applicant followed a practice of attending for medical attention when he had a problem with his health. I infer from this that it was not his practice to ignore problems with his well-being preferring to obtain medical attention when he perceived it was necessary.
Document T4/13 is a copy of a Naval Daily Medical Record dated 20 March 1978 referring to a previous attendance on 17 March and noting a bruise to the right bicep near the elbow, which I take to mean the bicep brachii, with residual tenderness in the axilla.
The applicant is recorded as attending for further examination by a Naval doctor on 23 May 1978 where "myalgia" was diagnosed. The recorded history is "pain around back of neck and both sides" over previous three days. URT1 also noted – (T4/14). On examination the medical officer found tenderness to both trapezius muscles but no tenderness on spine.
Exhibit 4 is a report by an Army Medical Board in relation to the applicant's L big toe dated 8 March 1979. The Board found "very large psychosomatic element" and diagnosed L great toe condition with psychosomatic overlay.
On 29 May 1980 the applicant attended before an Army Area medical officer who recorded pain left side neck and shoulder and right side chest pain on straining and coughing (T4/16).
On 1 April 1982 the applicant again attended for "pain neck and shoulders after ? PT" but was found to be fit for full duty (T4/21). On 21 August 1984 the applicant attended for examination for pain in back following a run. Spondylitis was diagnosed general tenderness of the spine having been found on examination (T4/25). Treatment by analgesics and diazepam was prescribed.
Document T4/22 records X-Ray investigation for cervical spondylosis in October 1984. The radiology report does not record any abnormality. On 16 October 1984 the applicant was referred to a physiotherapist for treatment (T4/26).
In March 1985 the applicant was again referred to an orthopaedic surgeon. On that referral the diagnosis by the orthopaedic surgeon was "cervical disc syndrome C5,6" (T4/30). Physiotherapy was prescribed and undertaken by the applicant.
Document T4/37 is a copy of a Medical Board Examination Record dated 10 February 1986 which, inter alia, diagnosed C5-6 degeneration and concluded that the applicant was fit for re-engagement but unfit for heavy lifting. Thereafter the applicant appears to have received treatment from time to time for cervical pain.
An X-Ray report in June 1989 (T4/43+50) found mild cervical scoliosis with degenerative changes at C5/6 but the remaining discs intact.
Exhibit A is a short medical report by Mr Rossato, Neurosurgeon, dated 2 June 1999. He explains an uncertain history told to him by the applicant since he first saw the applicant on 8 August 1994 (T7). Mr Rossato found significant symptomaetology (T9) with some exaggeration of symptoms. An MRI on 29 August 1994 showed pathology at three levels in the cervical spine with grossly abnormal discs at C5-6 and C6-7. Mr Rossato performed a two level anterior interbody discectomy and fusion resulting in solid union of the C5-6 and C6-7 (T10 and T11).
In his oral evidence Mr Rossato said that the degenerative condition would not have become symptomatic until a later time except for the accident. He said it would be rare to find the condition occurring naturally in a 36 year old without trauma. Because only some discs were affected it was more likely that there had been trauma. He thought the condition of the cervical spine was consistent with the history of an accident involving trauma to the neck. Following the surgery there was a permanent loss of mobility (T17).
The respondent relies upon the evidence of Dr Laister, Orthopaedic Surgeon who made reports dated 25 August 1998 (T23) and 13 October 1998 (T26). Dr Laister outlines a history of erecting camouflage netting in 1979 when the applicant fell several feet and landed on his back. Dr Laister then summarises the medical history. Dr Laister observed normal neck movement but on examination found grossly exaggerated symptoms. Dr Laister concluded that the applicant exhibited gross signs of magnified illness behaviour in his cervical spine, left big toe and his right thumb. In particular he said that the gross restriction of movement in the cervical spine during examination was belied by the fact that his range of movement seems good when not aware he was being observed. There were no neurological signs and no measurable wasting of the forearm musculature.
Dr Laister opined that the absence of severe incapacitating pain at the time of the fall in June 1979 suggested the fall was completely unimportant as far as the development of degenerative change was concerned. The applicant's disc degeneration was constitutional (T23).
In his oral evidence Dr Laister said that if there was no significant pain to the neck following falling out of the tree then it would be correct to conclude there was no injury. Damage to the cervical spine disc spaces would have caused excruciating pain. He reiterated his conclusion that the applicant's condition was consistent with disc degeneration with no evidence of trauma. In relation to the presence of osteophytes Dr Laister said their presence was consistent with either traumatic injury or natural degeneration whereas compression of the vertebrae will indicate trauma.
Documents T20, T21, T24 and T25 are reports by Ms Purse, Occupational Therapist. Those reports are detailed as to the functioning and functional needs of the applicant. In her oral evidence Ms Purse said that she relied on the reported neck and back conditions in assessing the applicant's functional requirements for assistance.
Document T5 is a copy of a medico-legal report by Dr Pincus, Consultant General Practitioner, dated 3 January 1990. The applicant had described no back pain but intermittent stiffness and pain in the neck. The applicant is said to have referred to a fall, in possibly 1982, onto the left shoulder which caused him no pain or visible injury but problems commenced several months later.
While admitting that the described fall could result in injury to the neck and back Dr Pincus says that such an injury would have been obvious to the applicant because of pain and stiffness. Dr Pincus thought the neck symptoms must be accepted as having a cause other than the fall because of the lack of symptoms at the time of the fall. In Dr Pincus' opinion the condition was degenerative.
The Applicant's SubmissionsIn written submissions the applicant says that the fact of the accident should be accepted notwithstanding the uncertainty about the date it occurred. Mr Rossato's opinion should be preferred to Dr Laister's. The latter's opinion was based on no reported pain at the time of accident and that has been shown now not to be the case.
The evidence of Ms Purse establishes that the domestic assistance is necessary.
The evidence of Dr Rossato shows that the fall was most likely to have been traumatic because the applicant would otherwise be so atypical as the one person of his age (36) who had degenerative neck disease.
The Respondent's SubmissionsThe applicant's medical history shows that he is acutely aware of any form of discomfort or pain and is quick to seek medical attention. He did not seek medical attention when he fell out of the tree nor as a result of the fall until 1989. The applicant said he only suffered minor pain at the time of the fall. There was no injury as a result of the fall. Even if it is accepted that the applicant suffered an injury as a result of the fall he does not reasonably require the household services.
In reply the applicant says I should not give any weight to Dr Pincus' report because the respondent failed to make him available for cross-examination. With respect that is a submission which ignores the Tribunal's General Practice Direction.
ConsiderationI have found this matter difficult because I am not satisfied that the applicant is a truthful witness. I accept on the evidence that it is more likely than not that the applicant fell out of the tree, during June 1979, in the course of his duty. I find the applicant's explanation to me of how he fell and was injured as being unbelievable and contrary to his own signed statement. I accept that it is more likely that the applicant fell so that his back and then his head hit the ground so that it is unlikely that there was any compression of the cervical spine.
I am satisfied on the material that the applicant spoke about his accident to others at the time and I am also satisfied that the applicant did not attend for medical attention in respect of the incident.
The non-attendance for medical attention is surprising, if the applicant's story about pain in the neck is true, given that he attended for medical attention on 23 May 1978 upon suffering pain at the sides and back of his neck for three days albeit without tenderness of the spine on examination, myalgia being diagnosed on that occasion.
Perhaps even more surprising is the applicant's attendance for orthopaedic examination on 15 June 1979. When the specialist diagnosed fractured neck of the 5th metacarpal (limb not identified) which had apparently occurred two weeks earlier and which was to be reviewed again two weeks after examination (T4/15). Nothing was recorded about falling out of a tree.
While I accept that the applicant fell out of the tree I am not satisfied that he was relevantly injured because of that fall. He says he suffered pain. I accept that is the case. But I am left to speculate as to whether that pain has any relevance to the claimed condition because I am not satisfied that the applicant's explanation about the incident is truthful. That lack of satisfaction is borne out by the failure to report the incident at the time (when he had previously been under specialist orthopaedic care and was then under medical care for R hand pain (para 14 & 15)) nor in the years following the incident until he reported it when he claimed compensation in 1988. That failure to report the incident was so out of character as to raise serious issues of credit as to the claim. Being satisfied that the applicant is not a witness of truth and there being no corroboration of his evidence that satisfies me that it is more likely than not that he was injured in the fall I cannot be satisfied that there is a causative link between the fall and the claimed condition. I am not satisfied that the claimed condition arose out of, or was caused by, the applicant's employment by the Commonwealth.
The decision under review will be affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of K L Beddoe (Senior Member)
Signed:
T G Lowther
AssociateDate/s of Hearing 13 & 14 October 1999
Date of Decision 30 May 2000
Counsel for the Applicant Mr Pope
Solicitor for the Applicant Wilson, Ryan & Grose
Counsel for the Respondent Miss Ford
Solicitor for the Respondent Barker Gosling
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