Lange and Military Rehabilitation and Compensation Commission

[2006] AATA 303

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 303

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/79

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRIAN ALLAN LANGE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date31 March 2006

PlaceHobart

Decision The decision under review is affirmed.

[The Hon C R Wright QC]

Deputy President

CATCHWORDS

Compensation - Compensation (C'th Government Employees) Act 1971 s27 - Safety and Rehabilitation Act 1988 s124 - national serviceman claiming disablement due to back injury on 7 February 1972 - finding that back injury occurred on 5 February 1972 while applicant off duty and that injury did not arise out of or in the course of his employment by the Commonwealth - decision under review affirmed.

REASONS FOR DECISION

31 March 2006 The Hon C R Wright QC., (Deputy President)   

The Application

1.      This is an application to review a decision of the Military Rehabilitation and Compensation Commission disallowing the applicant’s claim for compensation in respect of a back injury.    The determination under review was originally made on 11 October 2001, and was reviewed and affirmed by the Director on 21 June 2002.

2.      The applicant’s claim, which was lodged with the Department of Veterans’ Affairs on 25 July 1996, alleged that on 7 February 1972, whilst serving as a National Serviceman at Canungra in Queensland and working at his usual workplace, the applicant suffered a back injury affecting his back and left leg when lifting a drum of oil.

3.      The Department’s records indicate that the applicant had lodged a similar claim in 1979 in respect of the same incident.    This claim appears to have been investigated and disallowed in January 1982 on the ground that it failed “to establish liability under the Act”.   Unfortunately full details of this claim have not been revealed as “very little of the relevant file has been recovered”.   As a consequence it is not possible to determine the entire basis upon which that claim failed.   Nonetheless it has not been contended that the present claim is in any sense “res judicata” or that “issue estoppel” has any relevance for present purposes.   Accordingly the 1979 claim, although of historical interest, has no direct bearing on the present application for review.

4. The application for review was heard in Hobart on 21, 22, 23 and 24 March 2006. The Tribunal had before it a bundle of documents lodged under the provisions of s37 of the Administrative Appeals Tribunal Act 1975 (Exhibit A1) a supplementary bundle of documents (Exhibit A2), a further supplementary bundle of relevant documents prepared and lodged by the applicant’s solicitors (Exhibit A3) and several other documents, consisting, in the main, of witnesses’ proofs, which were individually numbered and will be referred to as necessary during the course of these reasons.   Several witnesses were called to give oral evidence, either in person or by telephone.

The Applicant’s Case

5.      The applicant Brian Allan Lange was born on 26 September 1950.    He is currently in a relationship of about 10 years duration.    He and his de facto wife live at Railton in Tasmania.     He is an invalid pensioner.   He suffers from a condition of Grade 2 spondylolisthesis at L5/S1 level of the spine.    This is a congenital condition usually occurring between the ages of 10 and 20 years.   The condition is often asymptomatic but can become painful and possibly disabling as the consequence of abnormal stress on the lower back.    The presence of the condition renders the person’s back more vulnerable to injury than would be the case in a person with a normal back.   Once aggravated it will often produce episodic pain which becomes more prolonged and chronic with age.   These symptoms may include sciatic pain in one or both legs and lead to irritation of the first sacral or fifth lumbar nerve roots.

6.      The applicant was conscripted as a National Serviceman during the Vietnam War in November 1970.    He did his initial training at Puckapunyal near Melbourne and was then posted to Broadmeadows in Melbourne where he was trained as a mechanic.   He was then sent to Canungra in Queensland for jungle training.   His work at Canungra consisted principally of attending to the servicing and mechanical repair of army vehicles.   The applicant did not reside at the Army base at Canungra.  He was married, and he and his then wife lived together at Main Beach near Southport.   He says that he used to travel “every day” from Main Beach to Canungra with two Army friends.   The applicant says that he and his friends would leave Southport at about 7.00 am.   It took between 30 minutes and one hour to travel to Canungra “so we would start [work] at around 8 am”.   All personnel were required to attend a parade every morning at about 8 am.   If unfit to parade for any reason it was necessary to attend the RAP to obtain a medical certificate.   The applicant was required to attend Canungra daily Monday to Friday inclusive and occasionally at weekends.   There is no suggestion that he was required to attend or did in fact attend the Canungra base on Saturday 5 or Sunday 6 February 1972.

7.      The applicant says that on Friday 4 February 1972 he had been working on the clutch of a Landrover and, on arriving at Canungra on Monday 7 February 1972, he went to the service bay to obtain a drum of oil to replenish the gearbox.   To do this it was necessary to fill the gearbox from an aperture on the left hand side which had been become accessible by the previous removal of the vehicle’s floor plates.   In his proof of evidence (Exhibit A4) the applicant said:

“32.    I recall picking up a four gallon (20 litres) drum which would be about ½ a metre high and would weigh about 15 kgs.

33.  I then carried the drum from the service bay back to the Landrover.   At this stage my back was fine and I did not have any problems.

34.I was lifting the drum through the left hand side passenger door of the Landrover and was still outside the vehicle when I felt something go in the middle of the lower part of my back.

35.I hunched over in pain and found that it was a grabbing and very painful experience.

36.I recall telling the captain or the sergeant in charge that I had hurt my back and that I was going to go to the medical centre at the base.

37.The medical centre was only at 100 yards away.   I can’t remember whether I walked or whether someone took me in a vehicle.

38.When I got there I told them I had hurt my back lifting.   They laid me out on a board on a bed.   I was flat out on my back.

39.I recall that I had some straps on my chest and I really couldn’t move.   They didn’t give me a lot of treatment apart from some painkillers and they gave me some ray treatment.   This was a red light which warmed the back.

40.It really didn’t do much good.

41.I recall I had two days in hospital and after that I went back onto light duties.  I didn’t do much and look after my back.   I really didn’t think much about it because it wasn’t any good, but I thought it would get better.

42.Between February and September 1972 I kept on working as a mechanic.   It was fairly light work.   I had pain but I simply used to put up with it.    I continued to travel each day from the Gold Coast to Canungra.

43.We had to complete a physical when we were discharged.   I can’t remember whether this was back at Anglesea Barracks in Hobart of Canungra.    I think it may have been Anglesea Barracks.

44.I recall that I was in a great hurry to be discharged.   I wanted to get out of the Army as quickly as possible and get back to normal life.   At that time I was not interested in claiming compensation even though my back continued to give me problems.   It simply was not on my mind.    My previous experience was that if my problems were bad enough, I would simply contact the Army and they would arrange treatment.    I did tell them that I had had a back injury and had spent two days in hospital.”

8.      It was put to the applicant in cross-examination that his account of injuring his back on 7 February 1972 was a fabrication.    It was put to him that he had actually injured his back at Southport on Saturday 5 February 1972 whilst off duty.   It was put to him that he had been lifting car tyres at about 10 am on that morning and had experienced sudden back pain when getting out of his car at about 11 am the same day.    The applicant denied each of these propositions.    He said that he had never had any problems with his back until the incident which he had described at Canungra on the Monday morning.

Findings

9.      I have no hesitation in rejecting the applicant’s evidence as to the occurrence of the relevant injury.   He was a poor witness generally and was quite unreliable as to times, dates and some places and the sequence of some historical events, but it is not these general features which causes me to disbelieve him as to the crucial event.    I am conscious that the very considerable passage of time since that event may have created difficulties for both parties in establishing facts relied upon to prove or disprove particular matters.    Neither of the applicant’s travelling companions was available to give evidence.   One has apparently died in a drowning accident.    The other cannot be located.   It is said that the applicant’s first wife has psychiatric and memory problems which prevent her from testifying.    The applicant’s relevant senior officers were apparently unknown or unavailable to give evidence.   The applicant was unable to provide their names.   The medical officer and other staff who attended the applicant at the Canungra medical post were not identified and did not give evidence.    The only oral evidence providing details of the relevant events was given by the applicant.

10.     There was however one piece of documentary evidence of great significance.   It is the Attendance and Treatment Card (“the Card”) (Exhibit A1, document T4, page 12) which relates to the applicant’s admission for treatment at the Canungra RAP on 7 February 1972.    It is a document consisting in part of manuscript entries, which I infer from the nature and source of the document, were made by the treating medical officer.    The document also contains entries on the top line which bear a remarkable similarity to other entries in  evidentiary documents apparently made by the applicant containing his service number and full name.    I infer that these particulars on the Card were supplied and written by the applicant himself,  probably on or about 17 May 1971 when he was treated for an earlier injury which is recorded as “sprained arm”.   The applicant did not concede this writing was his but he said “it could be mine”.

11.     That part of the Card which has been written by the medical officer who attended the applicant on 7 February 1972 is, in part, difficult, if not impossible, to read and counsel for the applicant has submitted that, for this and other reasons, the document should not be relied upon as a basis for adverse findings against the applicant.    I have borne these submissions in mind in considering both the content and effect of the entries on the Card and I set out hereunder my interpretation and understanding of the written notes.   Those words of which I am not completely sure I have written in italics.   Those words which I am completely unable to decipher I have left as a blank space in brackets.

Date	Place Where Treated	Short notes showing complaints symptoms, diagnosis, treatment etc..	Disposal	M.O’s Initials
7 Feb 72	CANUNGRA J & C	On Saturday 5 February c.1100 Hrs getting out of car off duty and got sudden backache.  No recent heavy lift except lifting (__________) tyres 1000 Hrs.  No previous backache. Since hurts on movement.  Little sleep last night. O.E Sciatica (R) ? L V. restricted (_______) by (______), tender over sciatic notch, tender over (R) ? Sacro-Iliac joint. Spasm (_____) M. Sacrospinatas (R) & (L) all movements restricted	B Manipulated Bed rest Infra red Aspirin (_______)	Initials
8 Feb 72	J & C	Settled.  Infra red Form          (________) (________)          (________)  Duty 24 Hrs    Signature	Signature

I infer that the following entries in the Card have the following meaning.

“C”      =         “circa” i.e. “about”

“OE”    =         “on examination”

“R”      =         “right”

“L”      =         “left”

12.     A second document pertaining to the applicant’s treatment on 7 February 1972, an “observation and Treatment Chart” (“the Chart”) Exhibit A1, Document T4, page 16 records (inter alia) that he was prescribed Ray treatment 3 times a day and 2 aspirins four hourly.    He was also to be observed four hourly.    The first ray treatment and two aspirins were given at 9 am.   Thereafter further treatments were given as prescribed until 8.15 the following day when alongside the entry “NAD” (which I infer is “no abnormality detected”) there are further entries as follows:

“RTU” (I infer return to unit).    “Infra Red as needed.   Back exercise.”

There are further entries which appear to be the initials of medical personnel.

13.     On his claim form of 25 July 1966 the applicant represented that the injury giving rise to his claim resulted from “once specific incident”.   He confirmed this when giving evidence at the hearing.    At no stage did he or his counsel suggest that he may have injured himself on Saturday 5 February 1972 and sustained a further injury or aggravation of the Saturday injury when he went to work at Canungra on the following Monday.   He said that he told the medical staff at the Canungra medical unit that he injured his back lifting a drum of oil.    There is no note of any such incident in the Card or Chart which I have referred to above.

14.     The applicant said that when he reported to the medical unit he was attended first by 2 medics and that his assessment took “not an hour – more like half an hour”.   The applicant’s counsel submitted that the entries on the Chart indicating that the applicant had his first treatment at 9 am was consistent with his having arrived at work at about 8 am and having started to do the work replenishing the gear case oil as he claimed.   Counsel for the respondent countered this argument as follows:

“We know from the medical records that he received ray treatment at 9 am.   One can therefore work back from this in order to try to determine the time at which he arrived at the medical centre.   Prior to then, he had (in reverse order) seen the doctor, been examined, admitted to hospital and prescribed ray treatment, manipulation and medication.   This was preceded by an assessment by a nurse or medic, which itself was preceded by attending the hospital, the finding of his medical records etc, once he has reached the head of whatever line was ahead of him.   The applicant says he was seen almost straight away and we are in no position to express any opinion as to the relative accuracy of that assertion.

The parade, had he attended, would, he said, have taken about 15-20 minutes, he says he had actually commenced to work, so that for him to have been receiving ray treatment 9 am, the previous steps must have occurred in very short time from, probably half past eight or a quarter to nine, when he would have been working.

Alternatively, on the scenario that we put, if  he arrived at work, unfit to work, went to the RAP etc, it is quite reasonable to see him receiving treatment about an hour later.”

15.     Counsel for the applicant also contended that if the applicant had injured himself on the Saturday as suggested by the Card entries it is highly unlikely he would have waited for treatment until he attended the Canungra camp on Monday morning, particularly as he could have sought, and presumably have received, treatment at the Southport hospital.    Against this it is necessary to consider that there is no evidence as to what the applicant did on Saturday 5 and Sunday 6 February.   However it is plain from the very considerable evidence given by his former employers Messrs Wylie, Bingham and Creese that the applicant was a good and diligent worker who, if he was suffering back and leg pain of the intensity and duration which he described in evidence, could properly be regarded as a stoic individual well able to work and function regardless of severe pain or discomfort.    That he may have waited for treatment until Monday is therefore not surprising.   The entry on the Card “little sleep last night” tends to confirm this.

16.     The applicant claimed originally that he spent 2 days having treatment at the Canungra medical unit but it is plain from the records, and he conceded himself in cross-examination, that he was in hospital for just under 24 hours.   This tends to suggest that his disablement from whatever mishap he had sustained was comparatively short-lived and responded well to conservative treatment.   After leaving hospital he returned to duty.

17.     On presenting for discharge from the Army on 5 September 1972, the applicant was medically examined.    In the Discharge History Questionnaire it is noted that the applicant disclosed that he “hurt back by lifting during NS – 2/7 in hospital”.   This entry, whilst in a sense neutral in terms of the issue under discussion, could be said to provide some support for the applicant’s claim.    If the entry is given that connotation,  it should be observed that it was undoubtedly a self-serving claim and more significantly, it was made nearly seven months after the relevant event.   I am quite unable to see this entry as displacing, weakening or nullifying the inferences which should be drawn from the Card and Chart previously referred to.

18.     The findings which I make are that the applicant injured his back whilst off duty and absent from the Canungra camp on Saturday 5 February 1972.   I also find that the applicant did not injure his back while lifting an oil drum or drums or any other article whilst present on duty at the Canungra camp on Monday 7 February 1972.

Conclusions

19.     It follows that the applicant did not sustain personal injury arising out of or in the course of his employment by the Commonwealth, and that therefore his claim for compensation under s27 of Compensation (Commonwealth Government Employees’) Act 1971 and s124 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act’) cannot succeed.

20.     It is therefore unnecessary to resolve the other issues which were raised in these proceedings relating to (a) his failure to give, or his delay in giving, notice of his injury and making a written claim for compensation; and (b) the disputed causal connexion between the injury suffered in 1972 by the applicant and his subsequent disability due to back and leg pain.

21.     Counsel for the applicant tentatively suggested that the applicant may have been acting in the course of his employment even if absent from Canungra and pursuing personal activities unconnected with his Army duties over the weekend.    I do not accept this argument which in my opinion is effectively answered by the observations of Webb J in Commonwealth v Wright (1956) 96 CLR 536 @ 551. The subsequent High Court decision in Roncevich v Repatriation Commission (2005) HCA 40 (10 August 2005) does not affect the applicability of Webb J opinion to the circumstances of the present case.

22.     I determine that the decision under review should be, and the same is hereby, affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  21,22,23 & 24 March 2006
Date of Decision  31 March 2006
Counsel for the Applicant         Mr Andrew Gaggin
Solicitor for the Applicant          Murdoch Clarke
Counsel for the Respondent     Mr B Morgan
Solicitor for the Respondent     Ms Naomi Richards AGS