DECISION AND REASONS FOR DECISION [2001] AATA 395
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1998/291
GENERAL ADMINISTRATIVE DIVISION )
Re TRACY LEAH LINE
Applicant
And COMCARE
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Dr Y S Haslam, Member
Date10 May 2001
PlacePerth
Decision 1. The Tribunal sets aside the decision under review and, in substitution therefor, decides that: (a) the respondent is liable, pursuant to s14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), to pay compensation to the applicant in respect of her injuries, namely chronic pain in both legs and somatoform disorder or anxiety/depressive disorder, resulting in her incapacity for work; and (b) the respondent is liable, pursuant to s19 of the Act, to pay to the applicant, in respect of the abovementioned injuries, the amounts of compensation as follows: (i) 100% of the applicant's "normal weekly earnings", as calculated under s8 of the Act, for each of the first 45 weeks immediately after 17 September 1995, in accordance with s19(2) of the Act; and (ii) for each week after the end of the abovementioned period of 45 weeks until 20 June 1997 during which the applicant was employed for 100% of her "normal weekly hours" during that week, 100% of her "normal weekly earnings", as calculated under s8 of the Act, in accordance with s19(3)(f) of the Act; and (iii) for each week after 20 June 1997, 75% of the applicant's "normal weekly earnings", as calculated under s8 of the Act, in accordance with s19(3)(a) of the Act. 2. The Tribunal orders, pursuant to s67(8) of the Act, that the respondent pay the costs of the applicant in these proceedings, such costs to be assessed in accordance with clause 6 of the Tribunal's General Practice Direction dated 18 May 1998.
...........(sgd S D Hotop)...........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant enlisted in Royal Australian Air Force ("RAAF") on 10 August 1992 – applicant sustained stress fracture of each shin in late 1992 in course of RAAF service – applicant discharged from RAAF on 17 September 1995 on ground that medically unfit for further service by reason of "bilateral fasciotomies" and "somatoform disorder" – respondent accepted liability to pay compensation to applicant in respect of "stress fracture left and right tibiae, left fibula and bilateral compartment syndrome" and "somatoform disorder" – responded accepted liability to pay lump sum compensation to applicant for permanent impairment and non-economic loss in respect of "lower legs condition" – respondent made determination assessing amount of compensation payable to applicant by way of weekly incapacity payments – whether applicant suffered an "injury" – whether applicant suffered a physical or mental ailment that was contributed to in a material degree by RAAF service – whether such ailment suffered by applicant as a result of failure by her to obtain a transfer or benefit in connection with RAAF service – whether such injury has resulted in applicant's incapacity for work – amount of compensation payable to…
Continue reading Line and Comcare
Sign in free to access the full text
Details
- AGLC
- Line and Comcare [2001] AATA 395
- Case
- [2001] AATA 395
- Decision Date
CaseChat Overview and Summary
The central issue in this case is whether the physical and mental ailments suffered by the applicant are compensable injuries under the Safety, Rehabilitation and Compensation Act 1988. The court had to consider whether these ailments were contributed to in a material degree by her service in the Royal Australian Air Force (RAAF). The applicant argued that her injuries were directly linked to her military service, while Comcare contended that the injuries were not attributable to her service. The court examined the medical evidence, including contemporaneous and subsequent reports, to determine the nature and cause of the applicant's ailments. The Tribunal found that the applicant suffered physical ailments such as stress fractures and compartment syndrome, as well as a mental ailment, during her service in the RAAF. The court also considered whether these ailments were injuries within the meaning of the Act, taking into account the definitions and precedents set in previous cases such as Comcare v Chenhall, Comcare v Mooi, and Pulitano v Telstra Corporation Ltd.
The court concluded that the applicant's physical and mental ailments were indeed injuries as they were contributed to in a material degree by her service in the RAAF. The Tribunal accepted the applicant's evidence regarding her ongoing physical pain and the persistence of her mental condition. The court further determined that the applicant's inability to secure suitable employment was a consequence of her injuries, warranting compensation under the Act. The final orders included affirming the applicant's entitlement to compensation for her injuries, with specific reference to the weekly incapacity payments and the lump sum for permanent impairment and non-economic loss.
The court concluded that the applicant's physical and mental ailments were indeed injuries as they were contributed to in a material degree by her service in the RAAF. The Tribunal accepted the applicant's evidence regarding her ongoing physical pain and the persistence of her mental condition. The court further determined that the applicant's inability to secure suitable employment was a consequence of her injuries, warranting compensation under the Act. The final orders included affirming the applicant's entitlement to compensation for her injuries, with specific reference to the weekly incapacity payments and the lump sum for permanent impairment and non-economic loss.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
At the hearing the applicant was represented by Mr H Christie of counsel and the respondent was represented by Mr J Lenczner of counsel. The Tribunal had before it the statement and the documents ("T documents" – numbered T1-T41 and ST42-ST49) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered by the applicant (numbered A1-A15) and by the respondent (numbered R1-R11). Oral evidence was given by the applicant and by the following witnesses who were called by the applicant: Dr J Edelman, Dr P Skerritt, Mr B Beaton and Mr R Line. Oral evidence was also given by the following witnesses who were called by the respondent: Mr F Bell, Sergeant R Rundle, Lieutenant A Banner, Dr D Shub and Ms K Kellahan.The Factual Background The background facts, about which there is no dispute between the parties and as found by the Tribunal on the basis of the T documents, are as follows. The applicant, who was born on 27 August 1974, enlisted in the Royal Australian Air Force ("RAAF") on 10 August 1992 and was discharged from the RAAF on 17 September 1995 on the ground that she was medically unfit for further service by reason of her physical and mental impairments described as "bilateral fasciotomies" and "somatoform disorder". Following lodgment by the applicant of a claim for compensation, the respondent accepted liability to pay compensation to the applicant pursuant to the Act in respect of injuries described as "stress fracture left and right tibiae, left fibula and bilateral compartment syndrome" and "somatoform disorder". The respondent subsequently also accepted liability to pay to the applicant lump sum compensation for permanent impairment and non-economic loss, pursuant to ss 24 and 27 of the Act, in respect of her "lower legs condition" on the basis that she had suffered a "whole person impairment" of 20% as a result of the compensable injury to her legs. On 18 June 1998 a delegate of the respondent made a determination assessing the amount of compensation payable to the applicant by way of incapacity payments pursuant to s19 of the Act. The delegate determined that the total amount of such compensation payable to the applicant for the period from 18 September 1995 to 24 June 1998 was $16,977.52 (gross) and that thereafter the amount of such compensation payable to the applicant per week was $19.80 (gross). On 9 July 1998 another delegate of the respondent made a decision affirming the abovementioned delegate's determination of 18 June 1998. On 28 July 1998 the applicant lodged with the Tribunal an application for review of the delegate's decision of 9 July 1998.The Applicant's Evidence A signed "witness statement" of the applicant, dated 14 June 1999, was tendered in evidence (Exhibit A1). The applicant confirmed that she had provided that statement and that, to the best of her knowledge and recollection, its contents are correct. The contents of that statement are as follows:"1. I was enlisted in the RAAF on 10 August 1992. Prior to enlistment I had not suffered from any headaches or stomach aches of any significance, any problems in relation to my legs or any psychological or any psychiatric condition as far as I am aware.2. It was approximately seven weeks into recruit training with the Air Force that I began to experience problems with my legs. Initially I felt a tightness in the calves of my legs. As far as I can recall I saw a medical officer in the Air Force about this problem about eight weeks after the recruit training commenced. The medical officer told me to take Mersyndol and I think he also gave me a prescription of Panadeine Forte.3. As far as I can recall, although I did have the prescription for Panadeine Forte filled the pain killers that I took were largely Panadol or, if my legs were feeling bad, Panadeine. I was taking these pain killers at least twice a day throughout recruit training.4. I didn't receive any restrictions on my duties in recruit training until about the last week or two of the training. These were temporary restrictions as far as I can recall and the restrictions were no marching, no running and no prolonged standing.5. Because of these restrictions when the rest of the recruits were marching I would have to walk with them but not march and because of these restrictions I didn't have to do any of the running that was involved in the physical training.6. As well as having problems with my legs in recruit training I also began to get massive headaches. These started to occur approximately six weeks after recruit training commenced. I had never suffered from headaches prior to recruit training and I presume the headaches were partly to do with the pressure of moving from civilian life to military life. I also thought that the headaches may be because of the fact that in recruit training I was only getting about six hours sleep a night and I was always tired.7. The headaches were virtually daily but because I was already taking pain killers for my legs I didn't take any pain killers for my head.8. I also suffered some stomach problems in recruit training. I had stomach cramps which I think were actually caused by doing sit ups. I became somewhat obsessed about the sit ups and I found that I was even doing sit ups in my sleep which made my stomach feel even worse. I also had a stomach ache for about a two week period when I was having problems with the room mate that I had during recruit training. Again, as with the headaches, I had never had any stomach problems before recruit training.9. I also had nightmares in recruit camp, however I have always suffered from nightmares. The nightmares I had in recruit camp were basically along the lines of being worried about doing the wrong thing and making everyone have to do extra duties because of that. I also had nightmares about being spat upon for failing to make the grade in recruit training. In Canberra I also had recurring nightmares about being chased, which nightmares continued until my discharge from the Air Force.10. After the recruit course was completed I was posted to Wagga where I spent approximately 15 weeks undergoing trade training to become a clerk. I continued on physical restrictions during this time, which restrictions were no parades, no prolonged standing and no running.11. During this time I was still taking pain killers for my legs on approximately the same level as during recruit training, however I did not have any problems with my stomach and I didn't suffer from headaches.12. After the trade training in Wagga I was posted to Canberra and it was there that my health became worse.13. Once again the condition in relation to my legs remained the same and I continued on restricted duties in terms of no marching, no parades, no prolonged standing and no running. In fact as far as I can recall not very long after getting to Canberra the restrictions in relation to my legs were made permanent.14. I recall in Canberra that in addition to Panadeine I was also taking Panadeine Forte but I am uncertain as to when I started taking this medication. After some time I found that the Panadeine Forte were not working effectively so what I did was I would stop taking tablets every now and then for a few days then I would take tablets for a day and then I would try and miss a day. On the days that I took tablets I would sometimes have to take two every six hours but generally I would just take two once or twice a day. The Mersyndol tablets seemed to be the best medication for my legs but I did find that they made me feel very dozy.15. After about eight months into my posting at Canberra I began to experience almost permanent headaches. I also was getting red vision, dizziness and black outs with the headaches and I could not focus on what I was doing. The headaches just got worse and worse as time went on. I also started to get stomach aches but I think these came later than the headaches and I think the stomach aches were caused by the clashes that I had with one of the corporals who used to give me quite a hard time. In particular he used to single me out because he didn't seem to think that I was a team player because of the physical restrictions that I had upon me because of my legs.16. About the same time that the headaches commenced I also started to suffer from mood swings which were really dramatic mood swings. I was either really happy or really angry. I did see psychologists and I think a psychiatrist while I was in the Air Force but I didn't really understand what was the cause of my problems. I remember that not long before I was discharged I was prescribed Epilim which I took for approximately one month. The Epilim tablets seemed to suppress only the exterior of my moods in that I would still feel that I was in a foul temper but I just didn't express it like I used to prior to taking the tablets. The reason why I stopped taking the tablets was because I could not handle the flattening effect that the tablets had upon me.17. I also continued with stomach problems while I was in Canberra. I think the stomach problems commenced approximately 15 months into the Canberra posting. At one stage the stomach aches became so bad that I would seize up with them and eventually I underwent a laparoscopy in Canberra but the surgeon could find nothing wrong with my stomach.18. I took no other medication at this time other than the medication referred to above.19. After I was discharged from the Air Force on 17 September 1995 I continued to suffer from stomach aches for about six months. I still get a stomach ache if I have a really big problem such as a big money problem. However this only occurs about once every six months.20. In relation to the headaches I continued to suffer from these for about six to eight months after the discharge. Since then I suffer from a headache sometimes when my legs really hurt or if I stay up too late studying. This would happen about once every couple of months. I do not take anything other than Panadol for these headaches.21. I am still subject to mood swings. However these are not nearly as severe as they were in the Air Force. I am seeing a psychologist, Mr Bruce Beaton, now because of the mood swings because I feel that I am not coping well with people. I feel scared sometimes that I can't see myself from other people's perspective and I am worried that people will not tell me when for example I do something wrong. I therefore feel that I have to stay on guard because of that.22. Mr Beaton is counselling me for this and I do feel better after my sessions with him.23. Immediately following my discharge from the Air Force I was actively involved in seeking employment.24. I would check the papers each day in relation to clerical and secretarial work and I sent approximately five or six letters per week applying for positions. Because there were so many jobs advertised in the paper I didn't think that there was any need to look elsewhere for employment. I was however registered with the Commonwealth Employment Service.25. I continued to actively seek employment as a clerk, but without success until I obtained such employment in April 1996. I also went looking for work as a shop assistant or waitress or similar, going from shop to shop or business to business in Midland, Fremantle, Rockingham and Perth. On that basis I would obtain a number of interviews on the spot. Typically during such interviews I would be asked what my previous experience was. I would then be asked why I had left my previous employment in the military and I would say that I had been discharged because of my leg problems. I avoided mentioning my somatoform disorder unless I was asked a direct question, as I was aware of the effect that that information had on potential employers from the times I had to mention it. Usually I would also be asked whether I had a current or previous compensation claim. Generally I was told that my employment application was unsuccessful. Often I was given no reason, sometimes I was told that the employer believed that I would not be able to cope with the standing that would be required.26. However, approximately four weeks before Christmas 1995 I obtained employment in a card shop. For the first two weeks of this employment I was working about three times a week doing a maximum of four hours each time. Then in the Christmas rush which was two weeks before Christmas I was called in approximately four to five times per week and I would work three to four hours. After Christmas I was informed that there was no more work available for me. When I applied for the work at the card shop I had told the manager about the problems that I had with my legs and because of this they arranged for a stool for me to sit on. Despite that I can recall that I still had problems with my legs aching by the end of each day when I was working.27. I also worked one night at a community Centre which would have been in early 1996. I was employed to serve drinks and I was supposed to be working for approximately three to four hours however I had to go home after one hour because my legs were hurting too much for me to continue.28. I also obtained a cleaning job I think in early 1996 but I was only there for two days because I couldn't cope with the pain in my legs. Furthermore I had problems with my legs because of the weight of the backpack vacuum cleaner that I was required to carry around and because of the speed that I was required to carry it around at.29. The employment listed above is the only employment that I obtained between my discharge from the Air Force to 9 April 1996 when I finally obtained employment as a clerk.30. Before I obtained the employment as a clerk which was with Edith Cowan University I had had at least three or four interviews for either clerical or secretarial work but had been unsuccessful in these interviews. At these interviews I was again asked about my previous work history and the reason for my discharge. The standard clerical application form asked whether I had a previous or current compensation claim. I believe that my affirmative answer to this question meant that I was not considered for many positions.31. My job at the University ended in June 1997 and I was told that this was due to restructuring at the University. However I had previously been told that my job was safe in the restructuring and that a more recent employee would lose her position. This changed after I had attended a medical check up about 12 months after I started work and I disclosed my somatoform disorder when previously my employer was only aware of my leg problems.32. By that time I was in fact pregnant with my son Jack but despite this I still sent out approximately 200 letters seeking employment in the last eight weeks of my employment with the University. I sent these letters in response again to newspaper advertisements for clerical work and secretarial work.33. After I had left the University I registered with three employment agencies and I sent out approximately another 200 letters seeking employment up until the time I was approximately four months pregnant. As usual, there was often a considerable delay between making an application and getting an interview. I went to approximately 20 interviews during this time. I believe that my failure to get work was partly because I was required to disclose my leg problems and compensation claim with the Respondent. However as my pregnancy progressed I believe that it would have been one of the major reasons why I did not obtain employment.34. Jack was born on 8 January 1998. After my son was born I did not seek employment as I was looking after him. However, I have been studying part time since January 1998 when Jack was a few weeks old. I am studying a Bachelor of Education as I would like to be a teacher. I am one unit short of completion of the first year of my degree and as I am doing the degree part time I have about three years left to complete after the end of this year.35. I have recently been considering whether to again start applying for clerical or secretarial work as Jack is now 16 months old. However I am conscious of the difficulties I have had in obtaining employment since my discharge from the Air Force, further my husband and I have discussed this and at the present time I intend to concentrate on my studying and looking after Jack and it may then be possible for me to complete my studies earlier than the anticipated three and a half years.36. I believe that since my discharge neither the Air Force nor any other Commonwealth Department are willing to employ me because of my conditions. However I remain ready and willing to immediately return to employment with any Commonwealth Department in any position that I am reasonably capable of performing and which is suitable for me."
Evidence
Evidence Before The Court
On 28 July 1998 the applicant lodged with the Tribunal an application for review of the delegate's decision of 9 July 1998.The Applicant's Evidence A signed "witness statement" of the applicant, dated 14 June 1999, was tendered in evidence (Exhibit A1). The applicant confirmed that she had provided that statement and that, to the best of her knowledge and recollection, its contents are correct. The contents of that statement are as follows:"1. I was enlisted in the RAAF on 10 August 1992. Prior to enlistment I had not suffered from any headaches or stomach aches of any significance, any problems in relation to my legs or any psychological or any psychiatric condition as far as I am aware.2. It was approximately seven weeks into recruit training with the Air Force that I began to experience problems with my legs. Initially I felt a tightness in the calves of my legs. As far as I can recall I saw a medical officer in the Air Force about this problem about eight weeks after the recruit training commenced. The medical officer told me to take Mersyndol and I think he also gave me a prescription of Panadeine Forte.3. As far as I can recall, although I did have the prescription for Panadeine Forte filled the pain killers that I took were largely Panadol or, if my legs were feeling bad, Panadeine. I was taking these pain killers at least twice a day throughout recruit training.4. I didn't receive any restrictions on my duties in recruit training until about the last week or two of the training. These were temporary restrictions as far as I can recall and the restrictions were no marching, no running and no prolonged standing.5. Because of these restrictions when the rest of the recruits were marching I would have to walk with them but not march and because of these restrictions I didn't have to do any of the running that was involved in the physical training.6. As well as having problems with my legs in recruit training I also began to get massive headaches. These started to occur approximately six weeks after recruit training commenced. I had never suffered from headaches prior to recruit training and I presume the headaches were partly to do with the pressure of moving from civilian life to military life. I also thought that the headaches may be because of the fact that in recruit training I was only getting about six hours sleep a night and I was always tired.7. The headaches were virtually daily but because I was already taking pain killers for my legs I didn't take any pain killers for my head.8. I also suffered some stomach problems in recruit training. I had stomach cramps which I think were actually caused by doing sit ups. I became somewhat obsessed about the sit ups and I found that I was even doing sit ups in my sleep which made my stomach feel even worse. I also had a stomach ache for about a two week period when I was having problems with the room mate that I had during recruit training. Again, as with the headaches, I had never had any stomach problems before recruit training.9. I also had nightmares in recruit camp, however I have always suffered from nightmares. The nightmares I had in recruit camp were basically along the lines of being worried about doing the wrong thing and making everyone have to do extra duties because of that. I also had nightmares about being spat upon for failing to make the grade in recruit training. In Canberra I also had recurring nightmares about being chased, which nightmares continued until my discharge from the Air Force.10. After the recruit course was completed I was posted to Wagga where I spent approximately 15 weeks undergoing trade training to become a clerk. I continued on physical restrictions during this time, which restrictions were no parades, no prolonged standing and no running.11. During this time I was still taking pain killers for my legs on approximately the same level as during recruit training, however I did not have any problems with my stomach and I didn't suffer from headaches.12. After the trade training in Wagga I was posted to Canberra and it was there that my health became worse.13. Once again the condition in relation to my legs remained the same and I continued on restricted duties in terms of no marching, no parades, no prolonged standing and no running. In fact as far as I can recall not very long after getting to Canberra the restrictions in relation to my legs were made permanent.14. I recall in Canberra that in addition to Panadeine I was also taking Panadeine Forte but I am uncertain as to when I started taking this medication. After some time I found that the Panadeine Forte were not working effectively so what I did was I would stop taking tablets every now and then for a few days then I would take tablets for a day and then I would try and miss a day. On the days that I took tablets I would sometimes have to take two every six hours but generally I would just take two once or twice a day. The Mersyndol tablets seemed to be the best medication for my legs but I did find that they made me feel very dozy.15. After about eight months into my posting at Canberra I began to experience almost permanent headaches. I also was getting red vision, dizziness and black outs with the headaches and I could not focus on what I was doing. The headaches just got worse and worse as time went on. I also started to get stomach aches but I think these came later than the headaches and I think the stomach aches were caused by the clashes that I had with one of the corporals who used to give me quite a hard time. In particular he used to single me out because he didn't seem to think that I was a team player because of the physical restrictions that I had upon me because of my legs.16. About the same time that the headaches commenced I also started to suffer from mood swings which were really dramatic mood swings. I was either really happy or really angry. I did see psychologists and I think a psychiatrist while I was in the Air Force but I didn't really understand what was the cause of my problems. I remember that not long before I was discharged I was prescribed Epilim which I took for approximately one month. The Epilim tablets seemed to suppress only the exterior of my moods in that I would still feel that I was in a foul temper but I just didn't express it like I used to prior to taking the tablets. The reason why I stopped taking the tablets was because I could not handle the flattening effect that the tablets had upon me.17. I also continued with stomach problems while I was in Canberra. I think the stomach problems commenced approximately 15 months into the Canberra posting. At one stage the stomach aches became so bad that I would seize up with them and eventually I underwent a laparoscopy in Canberra but the surgeon could find nothing wrong with my stomach.18. I took no other medication at this time other than the medication referred to above.19. After I was discharged from the Air Force on 17 September 1995 I continued to suffer from stomach aches for about six months. I still get a stomach ache if I have a really big problem such as a big money problem. However this only occurs about once every six months.20. In relation to the headaches I continued to suffer from these for about six to eight months after the discharge. Since then I suffer from a headache sometimes when my legs really hurt or if I stay up too late studying. This would happen about once every couple of months. I do not take anything other than Panadol for these headaches.21. I am still subject to mood swings. However these are not nearly as severe as they were in the Air Force. I am seeing a psychologist, Mr Bruce Beaton, now because of the mood swings because I feel that I am not coping well with people. I feel scared sometimes that I can't see myself from other people's perspective and I am worried that people will not tell me when for example I do something wrong. I therefore feel that I have to stay on guard because of that.22. Mr Beaton is counselling me for this and I do feel better after my sessions with him.23. Immediately following my discharge from the Air Force I was actively involved in seeking employment.24. I would check the papers each day in relation to clerical and secretarial work and I sent approximately five or six letters per week applying for positions. Because there were so many jobs advertised in the paper I didn't think that there was any need to look elsewhere for employment. I was however registered with the Commonwealth Employment Service.25. I continued to actively seek employment as a clerk, but without success until I obtained such employment in April 1996. I also went looking for work as a shop assistant or waitress or similar, going from shop to shop or business to business in Midland, Fremantle, Rockingham and Perth. On that basis I would obtain a number of interviews on the spot. Typically during such interviews I would be asked what my previous experience was. I would then be asked why I had left my previous employment in the military and I would say that I had been discharged because of my leg problems. I avoided mentioning my somatoform disorder unless I was asked a direct question, as I was aware of the effect that that information had on potential employers from the times I had to mention it. Usually I would also be asked whether I had a current or previous compensation claim. Generally I was told that my employment application was unsuccessful. Often I was given no reason, sometimes I was told that the employer believed that I would not be able to cope with the standing that would be required.26. However, approximately four weeks before Christmas 1995 I obtained employment in a card shop. For the first two weeks of this employment I was working about three times a week doing a maximum of four hours each time. Then in the Christmas rush which was two weeks before Christmas I was called in approximately four to five times per week and I would work three to four hours. After Christmas I was informed that there was no more work available for me. When I applied for the work at the card shop I had told the manager about the problems that I had with my legs and because of this they arranged for a stool for me to sit on. Despite that I can recall that I still had problems with my legs aching by the end of each day when I was working.27. I also worked one night at a community Centre which would have been in early 1996. I was employed to serve drinks and I was supposed to be working for approximately three to four hours however I had to go home after one hour because my legs were hurting too much for me to continue.28. I also obtained a cleaning job I think in early 1996 but I was only there for two days because I couldn't cope with the pain in my legs. Furthermore I had problems with my legs because of the weight of the backpack vacuum cleaner that I was required to carry around and because of the speed that I was required to carry it around at.29. The employment listed above is the only employment that I obtained between my discharge from the Air Force to 9 April 1996 when I finally obtained employment as a clerk.30. Before I obtained the employment as a clerk which was with Edith Cowan University I had had at least three or four interviews for either clerical or secretarial work but had been unsuccessful in these interviews. At these interviews I was again asked about my previous work history and the reason for my discharge. The standard clerical application form asked whether I had a previous or current compensation claim. I believe that my affirmative answer to this question meant that I was not considered for many positions.31. My job at the University ended in June 1997 and I was told that this was due to restructuring at the University. However I had previously been told that my job was safe in the restructuring and that a more recent employee would lose her position. This changed after I had attended a medical check up about 12 months after I started work and I disclosed my somatoform disorder when previously my employer was only aware of my leg problems.32. By that time I was in fact pregnant with my son Jack but despite this I still sent out approximately 200 letters seeking employment in the last eight weeks of my employment with the University. I sent these letters in response again to newspaper advertisements for clerical work and secretarial work.33. After I had left the University I registered with three employment agencies and I sent out approximately another 200 letters seeking employment up until the time I was approximately four months pregnant. As usual, there was often a considerable delay between making an application and getting an interview. I went to approximately 20 interviews during this time. I believe that my failure to get work was partly because I was required to disclose my leg problems and compensation claim with the Respondent. However as my pregnancy progressed I believe that it would have been one of the major reasons why I did not obtain employment.34. Jack was born on 8 January 1998. After my son was born I did not seek employment as I was looking after him. However, I have been studying part time since January 1998 when Jack was a few weeks old. I am studying a Bachelor of Education as I would like to be a teacher. I am one unit short of completion of the first year of my degree and as I am doing the degree part time I have about three years left to complete after the end of this year.35. I have recently been considering whether to again start applying for clerical or secretarial work as Jack is now 16 months old. However I am conscious of the difficulties I have had in obtaining employment since my discharge from the Air Force, further my husband and I have discussed this and at the present time I intend to concentrate on my studying and looking after Jack and it may then be possible for me to complete my studies earlier than the anticipated three and a half years.36. I believe that since my discharge neither the Air Force nor any other Commonwealth Department are willing to employ me because of my conditions. However I remain ready and willing to immediately return to employment with any Commonwealth Department in any position that I am reasonably capable of performing and which is suitable for me."
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Subsequent to the hearing in this matter both parties, in accordance with directions of the Tribunal, lodged extensive written submissions with the Tribunal. Those submissions have been carefully considered by the Tribunal but will not be set out in these reasons.Findings on Material Questions of Fact and Consideration of IssuesDid the applicant suffer during her period of service in the RAAF, and does she continue to suffer, a physical and/or mental ailment? On the basis of the medical evidence before it – in particular, the contemporaneous reports of Mr Van Der Rijt, Mr Stubbs and Dr Howse – the Tribunal finds that the applicant, during her period of service in the RAAF, suffered the following physical ailments, namely, stress fracture of the left and right tibiae and of the left fibula, and anterior and posterior compartment syndrome in both legs. On the basis of the medical evidence before it – in particular, the contemporaneous report of Dr White and the subsequent reports of Dr Shub and Dr Skerritt – the Tribunal finds that the applicant, during her period of service in the RAAF, suffered a mental ailment, namely, somatoform disorder (as opined by Dr White and Dr Shub) or anxiety/depressive disorder (as opined by Dr Skerritt). The Tribunal notes that Dr Skerritt did not exclude a diagnosis of somatoform disorder in the applicant's case. The question whether the applicant has continued to suffer a physical ailment is somewhat more problematic, given that there is some conflict in the medical evidence as regards the likelihood that the applicant is continuing to suffer leg pain by reason of the stress shin fractures and bilateral compartment syndrome she suffered in her legs during her RAAF service. The Tribunal, however, regards the applicant as a credible witness and accepts her evidence that she has continued at all material times to experience pain in both legs. Furthermore, there is no suggestion in the medical evidence that the applicant has not continued to experience leg pain – even Mr Bell in his oral evidence was not prepared to deny that the applicant still experiences leg pain – although there is disagreement - in particular between Drs Edelman and Nathan on the one hand, and Mr Bell on the other – as to whether that ongoing leg pain is due, at least in part, to the stress shin fractures and bilateral compartment syndrome suffered by the applicant during her RAAF service. On the basis of the whole of the evidence before it, the Tribunal finds that the applicant has continued to suffer a physical ailment manifested in the form of chronic pain in both legs. On the basis of the medical evidence before it – in particular, the reports and oral evidence of Dr Shub and Dr Skerritt – the Tribunal finds that the applicant has continued to suffer a mental ailment in the nature of a somatoform disorder (as opined by Dr Shub) or an anxiety/depressive disorder (as opined by Dr Skerritt).Is each of the abovementioned physical and mental ailments suffered by the applicant an "injury" as defined in s4(1) of the Act?