Lynch and Military Rehabilitation and Compensation Commission (Veterans' entitlements)
[2023] AATA 2229
•27 July 2023
Lynch and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2023] AATA 2229 (27 July 2023)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2022/5487
Re:Ivan Lynch
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Sosso
Date:27 July 2023
Place:Brisbane
The decision under review is affirmed.
..........................[SGD]..........................
Deputy President Sosso
Catchwords
VETERANS’ COMPENSATION – compensation for injury – injury or disease – notice of injury – whether the relevant authority would be prejudiced – liability for injury – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Cases
Abrahams v Comcare [2006] FCA 1829
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Dowde and Comcare [1995] AATA 112
Holmes and Comcare [2001] AATA 290
Lees v Comcare [1999] FCA 753
Metcalf and Comcare [1998] AATA 998
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Pacific Manning Company Pty Ltd v Barton [2003] FCA 498
Prain v Comcare [2017] FCAFC 143
Sarraf and Comcare [2018] AATA 3196
REASONS FOR DECISION
Deputy President Sosso
27 July 2023
INTRODUCTION
Mr Ivan Lynch (the veteran) seeks a review of a decision of the Military Rehabilitation and Compensation Commission (the Commission) of 29 June 2022, which affirmed a determination of 23 June 2022 denying liability under s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (the Act) for the claimed condition of thoracic spondylosis – Exhibit 1 T15 pp. 56-60, T19 pp. 73-75.
The veteran was born in 1966 and is currently 57 years of age – Exhibit 1 T5 p. 11.
The Department of Defence Service Record for the veteran indicates that he served in the Australian Army Active General Reserves as a Rifleman from 26 September 1990 until
1 August 1993 – Exhibit 1 T21 p. 80.
The veteran’s Entry Medical Examination Record dated 22 September 1990 discloses that the only abnormalities determined to exist in him related to the nose and respiratory system – Exhibit 1 T23 p. 87. The veteran’s back, posture and gait were recorded as “normal”.
In the Application for Enlistment or Appointment, the veteran disclosed that he had been convicted of a criminal offence, but did not disclose that he had rendered any previous service as a member of the Australian Defence Force – Exhibit 2 R4 p. 446.
On 2 May 1991 the veteran was issued with a Show Cause Notice as to why he did not disclose several convictions in his enlistment application which were subsequently identified in a Police check – Exhibit 2 R4 p. 496.
The veteran submitted that the information he provided on enlistment was not false, but rather was incomplete and gave reasons for this omission – Exhibit 2 R4 pp. 483-484.
The Officer Commanding, 2 Commando Company, 1st Commando Regiment,
Major Truscott, in a letter dated 13 August 1991, accepted the veteran’s explanation – Exhibit 2 R4 p. 482:
“2. This response is honest and indicates a genuine desire by PTE Lynch to put his past behind him and make a career in the ARes. He has since completed all his basic training and is now a beret qualified Commando. His Platoon Commander advises that he is a good soldier and in his opinion should be given the opportunity to continue serving.
3. This unit no longer feels PTE Lynch need justify his future service, and his redress to the Notice to Show Cause is accepted.”
A Personal Occurrence Report dated 25 August 1993 records that the veteran discharged from the Australian Army on 1 August 1993 at his own request – Exhibit 2 R4 p. 459.
The Department of Defence confirmed that all available records for the veteran had been provided for these proceedings and those records indicated that the veteran enlisted on
26 September 1990 and discharged on 1 August 1993 – Exhibit 2 R5 pp. 543-544.
The veteran has the following accepted conditions – Exhibit 1 T22 p. 81:
(a)Tinnitus – accepted 18 January 1991;
(b)recurrent left ankle sprain – accepted 25 June 1992; and
(c)osteoarthritis of the left ankle – accepted 26 April 2019.
The veteran has also the following non-accepted conditions – Exhibit 1 T22 pp. 81-83:
(a)lentigo maligna melanoma – not accepted 21 March 2019;
(b)asthma – not accepted 21 March 2019;
(c)cervical spondylosis – not accepted 21 March 2019; and
(d)PTSD – not accepted 7 October 2021.
On 18 May 2018 the veteran underwent a surgery consultation with Dr John Nguyen GP of Albury Central Medical Centre. Amongst the reasons for the contact, as noted by
Dr Nguyen, was “Back pain – chronic. Compressed vertebrae from parachuting” –
Exhibit 2 R3 p. 35.
On 3 January 2019 the veteran underwent a CT scan of his lumbosacral and thoracic spine – Exhibit 1 T6 pp. 12-13. Dr Komisar, who performed the CT scan, noted that the veteran was suffering from lumbar and thoracic back pain “from paratrooper days” –
Exhibit 1 T6 p. 12. Dr Komisar made the following findings of the veteran’s thoracic spine – Exhibit 1 T6 pp. 12-13:
“Alignment is anatomic. Vertebral body heights are preserved. The disc spaces are preserved. Multilevel anterior osteophytes are noted. There are multiple Schmorl’s nodules. No evidence of disc herniation, central or neuroforaminal narrowing through the thoracic spine.
Visible abdominal viscera is within normal limits. The visible lung fields are clear.”
On 21 August 2021, the veteran lodged a Claim for Compensation in respect of PTSD and Thoracic Compression in Neck and Back – Exhibit 1 T10 pp. 31-43.
In the Service Details part of the claim form, the veteran claimed that he had enlisted in the Australian Army on 12 June 1989 and was discharged on 9 August 1997 – Exhibit 1 T10
p. 33.
The veteran claimed that he had served in Rwanda as part of Operation Tamar in
1994-1996 and served also in the “Submarine Special Service” – Exhibit 1 T10 p. 34.
The claim for PTSD related to the veteran’s claimed service in the Submarine Special Service when on 18 August 1993 he was “shot at” and saw “mates die” –
Exhibit 1 T10 p. 36.
The claim for thoracic depression in the neck and back was caused by being “parachuted out at 400 feet and relieving [sic] broken bones”. This incident was claimed to have occurred on 10 June 1992 whilst rendering service in Australia – Exhibit 1 T10 p. 37.
On 2 September 2021 a Contracted Medical Advisor (CMA) diagnosed the veteran as suffering from thoracic spondylosis, with a date of onset of 7 January 2019. The CMA opined that as the veteran had been a paratrooper, this service “is likely to have involved repetitive stresses to the spine” – Exhibit 1 T12 pp. 48-49.
On 30 May 2022, the same CMA provided a further opinion in which she concluded as follows – Exhibit 1 T14 p. 55:
“Given 3 years of service which included paratrooper experience, concluding
26 years prior to the onset of thoracic spondylosis, the rigours of service would have contributed materially to the onset of thoracic spondylosis.”
On 23 June 2022 the veteran’s claim was rejected. The Delegate gave the following reasons for her rejection of the claim – Exhibit 1 T15 p. 60:
“You have stated that your condition was caused by Being parachuted out at 400 feet and relieving [sic] broken bones.
The condition has been diagnosed as Thoracic spondylosis. This diagnosis is based on 03 January 2019 CT thoracic spine clinical notes…
This condition is considered a disease under the DRCA.
I am satisfied that the condition had its onset on 03 January 2019. This is the date based on a CT scan of the thoracic spine.
I have noted your contention as to the cause of this condition. I acknowledge the duties and high level of physical fitness required with the ADF. You discharged from the ADF on 1 August 1993. As part of my investigation I have also considered the period of your reserve service of 2 years and 10 months. The condition onset was on 03 January 2019. Considering the extensive time between discharge and diagnosis, I am not reasonably satisfied that your ADF service has contributed to a significant degree to the development of your thoracic Spondylosis.
Having considered all the available evidence, I am not reasonably satisfied that your service contributed to a significant degree to your condition. Your claim in respect of this condition is therefore unsuccessful…”
The same day the veteran sought a reconsideration of this Determination stating “my vertebrae compression is and was caused by service and parachuting” – Exhibit 1 T16
p. 61.
On 25 June 2022, the veteran provided further material in support of his reconsideration request. The veteran provided photos of him attending the Parachute Training School as well as photos of service personnel parachuting. He also provided a copy of a Statement of Defence Force Reserve Service from 1 July 1989 to 30 June 1992. The document certifies that the veteran completed 148 days Defence Force Reserve service in that period –
Exhibit 1 T18 p. 70.
On 29 June 2022 the Reconsideration Delegate affirmed the Determination of 23 June 2022 – Exhibit 1 T19 pp. 73-75.
The Reconsideration Delegate first noted that in assessing evidence relating to liability the balance of probabilities test was applicable – Exhibit 1 T19 p. 74.
Second, the Delegate determined that the date of injury was 3 January 2019, when the CT scans of the spine were performed – Exhibit 1 T19 p. 74.
Third, as the date of injury was after 13 April 2007 the ailment suffered by the veteran had to be contributed to, to a significant degree, by his employment – Exhibit 1 T19 p. 74.
The Reconsideration Delegate concluded as follows – Exhibit 1 T19 p. 75:
“I have reviewed the available defence medical records and can find no evidence of trauma to the thoracic spine, or any presentations at all, during service.
I have considered your contentions and the rigours of service, however considering the length of reserve service (2 years and 10 months), length of time since discharge, onset of the condition, your age and general wear and tear, I am not satisfied that your service has contributed in a ‘significant degree’ to the onset of ‘thoracic spondylosis’, and I have affirmed the decision under review.”
THE HEARING
A Hearing was convened in Brisbane on 9 May 2023. The parties appeared remotely. The veteran was self-represented and the Commission was represented by Ms G Gehrke of Sparke Helmore Lawyers.
Neither party called witnesses, but the veteran gave evidence.
During his cross-examination by Ms Gehrke, the veteran terminated the phone call.
After unsuccessfully attempting to reconnect the veteran, I made the following Directions:
(a)the Commission was to provide to the Tribunal and to the veteran written Closing Submissions on or before 23 May 2023; and
(b)the Tribunal would reconvene the Hearing on 29 May 2023.
Sparke Helmore Lawyers provided written Closing Submissions on 17 May 2023.
The Hearing resumed on 29 May 2023. Phone contact was successfully made with the veteran. Ms Gehrke again appeared for the Commission.
The veteran was given an opportunity to provide any further evidence to the Tribunal but declined. Both parties were content for the Tribunal to make a determination based on the material then before it.
ISSUES
The ultimate issue for resolution by the Tribunal is whether the Commission is liable to pay compensation under s 14 of the Act for the claimed condition of thoracic spondylosis. However, in reaching a conclusion on that issue a number of prior issues need to be addressed.
The first issue to be determined by the Tribunal is whether the veteran is precluded from claiming compensation for failing to comply with the notice requirements prescribed by s 53 of the Act.
If the Tribunal is satisfied that the notice requirements were satisfied, then the following matters must be addressed:
(a)does the veteran suffer from thoracic spondylosis?;
(b)if yes, when did the veteran first suffer from thoracic spondylosis?;
(c)is the claimed condition an injury or a disease?;
(d)if it was a disease, was the ailment contributed to, to a material degree if suffered prior to 13 April 2007, or to a significant degree, if suffered after 13 April 2007, by the veteran’s service; and
(e)if it was an injury, did the condition arise out of or in the course of the veteran’s service?
At the Hearing Ms Gehrke informed the Tribunal that the Commission accepted that the veteran suffers from thoracic spondylosis – Transcript (Tr.) 9.5.2023 p. 6.
NOTICE REQUIREMENTS
Subsection 53(1)(a) provides that the Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority as soon as practicable after the employee becomes aware of the injury.
Attention can also be directed to s 53(3) which provides that when a notice fails to comply with the requirements of s 53 nonetheless:
(c)“the relevant authority would not, by reason of that failure, be prejudiced if the notice were treated as sufficient notice, or the failure resulted from the death, absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause…”
The Commission points out that the veteran, in his claim form, stated that he first became aware of the signs and symptoms of the thoracic compression in his neck and back on
10 June 1992, which is the day that the veteran stated he was injured in a parachute jump – Exhibit 1 T10 p. 37.
Further, the Commission also points out that the veteran did not lodge a compensation claim until 21 August 2020, which amounted to a delay of 28 years.
It is also submitted by the Commission that the veteran had notice of his entitlements and right to make a claim for compensation as evidenced by his accepted claims for tinnitus, recurrent left ankle sprain, osteoarthritis, and rejected claims for melanoma, asthma and cervical spondylosis – Exhibit 2 R5 p. 537 para 4.12.
At the Hearing I asked the veteran about the claimed delay, and the following exchange occurred – Tr. 9.5.2023 p. 11:
“Okay. Now, you’ve heard what Ms Gehrke had to say. She outlined in summary what the Commission’s issue is And the first issue that she raised was the failure by yourself, in her submission, to provide timely notice of your injury. And she outlined there that you claimed you were injured on or around June 1992 but didn’t make a claim for a period of more than a quarter of a century after that. So would you like to explain to me your point of view, or your contrary point of view, to Ms Gehrke?---Yes, well I actually didn’t apply for my DVA Card until I think it was 17 or 18 anyway. And I didn’t know you could actually lodge claims which – once my wife (indistinct) so I sort of found out about that. But all injuries weren’t recorded. There was one night we done a parachute jump and there was blokes with broken legs, and I’m not sure if all that got reported. We got – we got fixed up, but even when we were on training exercises, I’d twist my ankle and that, we’d just have to keep pushing through it. But the other thing is I broke my ankle in a parachute jump on a January ’92 exercise, which wasn’t reported, and my broken ankle has been accepted as a condition on my White Card. And that only happened, you know, last year. So there was a big break from ’92 to 2018 when my ankle got accepted. So, that’s why I put the claim in for my back.”
The Tribunal has some difficulties with this explanation. The veteran lodged claims for tinnitus and recurrent left ankle sprain in 1991 and 1992 respectively. Presumably, then, his explanation that he did not know he could lodge claims is inconsistent with the fact that he had lodged claims during the period that he was rendering service.
It is the case that the Courts in a series of decisions have read down the operation of
s 53(1). In Abrahams v Comcare [2006] FCA 1829 at [18] the Court, in the context of notice of injury, held that a decision-maker should give “…a broad, generous and practical interpretation…consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and different levels of legal advice…will be giving the notice.”
Further, in the context of s 53(1)(a) “as soon as practicable after the employee becomes aware of the injury”, von Doussa J in Pacific Manning Company Pty Ltd v Barton [2003] FCA 498 in the context of a comparable provision in another Act, made the following observations about the correct interpretation of the legislation (at [37]):
“Subsection 62(1)(a) must be read with other definitional sections in the Act. For example, “injury” is defined in s 3. The obligation to give notice of injury is not an obligation to give notice as soon as practicable after the happening of an injury which meets that definition. On the contrary, the obligation to give notice only commences to run when the employee becomes aware of the injury. In context, the “injury” referred to in s 62(1)(a) is the injury referred to in the opening words of s 62(1), namely “an injury suffered by an employee”. Section 6 provides that a reference in the Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee for which compensation is payable under the Act. Relevantly, compensation is not payable simply for a physiological or mental condition that meets the requirements of the definition of “injury” in s 3. There must also be incapacity for work or impairment before compensation is payable: s 26. In my opinion there is nothing in or about s 62 that indicates an intention that s 6 is not to the reference in s 62 to an injury suffered by an employee. On the contrary, the Act is remedial in nature and should be given a beneficial construction: see Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335 and Esam v ASP Ship Management (1998) 87 FCR 82 at 85. If s 62(1) is read with s 6, a construction is achieved where the employee is not required to give notice of minor cuts, aches and pains which the employee at the time thinks are unlikely to cause any incapacity for work or impairment. The notice requirement then takes on a practical, realistic operation, namely that employees are required to give notice where and when they are aware that they have suffered an injury that causes incapacity for work or impairment and therefore attracts the benefits of the Act.”
Accordingly, an employee is only required to give notice of an injury when they become aware that they have suffered an injury that either causes incapacity for work or an impairment that is compensable.
As the Commission highlighted, the veteran, in his claim form, stated that he first became aware of the signs or symptoms of his claimed injury on 10 June 1992. The Tribunal does not have before it any medical evidence of the veteran seeking treatment for the claimed injury for the following 25 years. The absence of corroborating evidence can be compared to the factual matrix in Sarraf and Comcare [2018] AATA 3196, where fairly extensive corroborating medical evidence was presented.
The Tribunal has taken into account the very difficult circumstances that the veteran faced as a boy and a young man. The veteran testified that he was a Ward of the State for approximately six years when he aged between 11 and 18. During that time, the veteran testified that he did not receive a formal education of the normal standard. He was held in three different institutions, all located in Melbourne – Tr. 9.5.2023 pp. 11-12. Despite this difficult background, the veteran testified that his reading and writing skills were “fine” –
Tr. 9.5.2023 p. 12.
The veteran testified that he only lodged his claim because his wife told him to. According to the veteran she said to, “see how you go” – Tr. 9.5.2023 p. 12.
The Tribunal finds it difficult to believe that the veteran was suffering thoracic spine pain from the time of the parachute incident in 1992, and yet only saw a Doctor complaining of this condition in 2018. However, even if the Tribunal accepts that this was the case, it is patently clear to the Tribunal that the veteran was aware throughout that he could have made a claim, as he exercised his right to do so in 1991 and 1992. Further, even if the Tribunal accepts that the veteran’s understanding that he had a compensable condition did not crystallise until he first sought medical treatment on 18 May 2018, nonetheless his claim was not lodged until 21 August 2021, three years later.
It follows that the Tribunal does not believe that the veteran can rely on the Commission not being prejudiced by the delay in lodging the claim on the grounds of ignorance.
The question which necessarily next arises is whether the Commission has been prejudiced by the veteran’s delay in lodging a claim.
The Commission drew the Tribunal’s attention to the following observations of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551:
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates.” Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
[Citations omitted]
In this matter, the Commission contends that the delay of over 28 years has resulted in the Commission being deprived of the opportunity to investigate the factual circumstances claimed by the veteran. It is further contended that there is no evidence in the veteran’s service medical records of him suffering an injury on 10 June 1992 – Exhibit 2 R5 p. 538 para 4.13.
The Tribunal accepts that the Commission has been prejudiced by the veteran’s delay in lodging a claim.
The factual matrix in this matter can be compared to previous Tribunal determinations on whether prejudice to the determining authority had been made out.
In Dowde and Comcare [1995] AATA 112, the Tribunal found that a delay of seven years in making a claim for asthma arising from passive smoking in the workplace resulted in a substantial prejudice to the employer and was not attributable to any reasonable cause. The Tribunal made the following observations:
32“In an Affidavit sworn on 3 April 1995, Mr. L. Dobelsky, a solicitor in the employ of the Australian Government Solicitor, stated that he had made inquiries with the Department of Defence concerning this matter, but that he was not able to find any evidence to rebut the assertions of Ms. Dowde. This was because of the time which has elapsed between the date to which her claim relates, and the date of his inquiries. It was Mr. Dobelsky's belief, therefore, that as he has not been able to obtain independent evidence that would allow the respondent to prove or disprove Ms. Dowde's assertions, the respondent has thus been severely prejudiced by her delay in bringing her claim for compensation.
33During his closing address Mr. McInnis invited attention to Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 (Deputy President I.R. Thompson, Ms. L.S. Rodopoulos and Professor R.W. Webster, Members), in which the Tribunal said at p.535 in respect of the 1971 Act:
‘Although the Act is framed in terms of imposing liability on the Commonwealth and its instrumentalities rather than in terms of its giving to an employee the benefit of compensation, the giving of that benefit may properly be seen as the obverse of the imposition of the liability on the Commonwealth. Consequently the Act should, in our view, be regarded as beneficial legislation. Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act.’”
Conversely, in Metcalf and Comcare [1998] AATA 998 the Tribunal found that the determining authority was not prejudiced even though there was a four year delay in the applicant commencing proceedings because Comcare had access to the relevant medical reports. The Tribunal made the following observations:
“While it is true that the claim for compensation was not made “as soon as practicable” after the applicant became aware of the injury, the force of Comcare’s submission is diminished by the fact Comcare obtained medical reports in 1995, at that time for purposes associated with the determination of a claim for chiropractic treatment expenses incurred since October 1994. Furthermore Comcare has, for the purpose of these proceedings, had available to it medical reports obtained by National Mutual and Crown Casino for example Dr Jack Lipp (Ex. R7) dated 2 June 1995.
In our opinion the prejudice ground has not been established. Section 53(3)(c) applies to deem notice of injury to have been given to Comcare.”
Finally, reference can be made to Holmes and Comcare [2001] AATA 290. In that matter the applicant started experiencing neck and upper right limb pain in the early 1990s but did not lodge a claim until 1998. The Tribunal found there was no actual prejudice to Comcare because the disease was of gradual development and there was adequate medical evidence of its progression.
It is patently clear from the above authorities, and others, that there are two key factors in determining whether the determining authority has been prejudiced. First, the length of time before a claim is lodged, and, second, whether due to the effluxion of time the determining authority is unable to locate witnesses, obtain reports or otherwise obtain evidence to either accept or reject the claim. The second factor is the most important.
In this matter the length of the delay is over 20 years. This, of itself, is not determinative. However, when this long delay is considered in conjunction with the Commission now being deprived of being able to locate relevant documents and evidence, it is determinative. It is clear in this matter that the Commission has been placed at a grave disadvantage by the veteran’s delay in lodging a claim. The Tribunal is not critical of the veteran. He is not a lawyer, he has had many problems in his life and he suffers from a number of medical conditions. Indeed, the Tribunal has some sympathy for his plight. However, in this matter it is tolerably clear that the veteran was aware of his legal entitlements in lodging a claim but, for reasons that are not clear, failed to do so. Perhaps, as the veteran testified, it was his wife’s encouragement that led to him lodging a claim. For whatever reason, the veteran “sat” on his rights, and in so doing has severely disadvantaged the Commission.
The Tribunal therefore finds that the veteran’s claim cannot succeed because he has not satisfied the notice requirements of s 53(1).
SECTION 14 LIABILITY
Introduction
If the Tribunal is in error with the s 53(1) finding, consideration will now be given to the veteran’s substantive claim and whether the Commission is liable to pay compensation pursuant to s 14 of the Act.
Legislative overview
Section 14 “is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned” – Lees v Comcare [1999] FCA 753 (Lees) at [27]. It creates a liability for the Commonwealth to pay compensation for injuries suffered by employees resulting in death, incapacity for work or impairment. As the Full Court in Lees highlighted, liability is qualified in two ways:
(a)liability is subject to the other provisions in Part II of the Act; and
(b)the liability is “in accordance with” the Act, namely “to pay compensation for which the statute provides, as required by the Act (see, for example, s17(3)(4) and s(5), s19, s20, s24 and s25)” – Lees at [27].
In order for liability to be accepted pursuant to s 14, the following findings are required:
(a)appropriate notice of injury has been given;
(b)a claim for compensation, in accordance with the Act, has been made;
(c)the claimant was an employee at the relevant time;
(d)the employee suffered an injury; and
(e)the injury resulted in death, incapacity for work or impairment – see Lees at [35].
The term “injury” is defined by s 5A to mean:
(a)“a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.”
It will be seen that the definition of “injury” comprises two main subsets, namely “disease” and “injury (other than a disease)”, each of which, comprises separate but related bases of liability. The third basis of liability is an aggravation of a physical or mental injury (other than a disease).
As the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 482, the first task of the tribunal of fact is to determine if the employee is suffering a disease. However, it is important to note, that “disease” and “injury (other than a disease)” are not mutually exclusive categories – Prain v Comcare [2017] FCAFC 143 at [72] (Prain). Kenny, Tracey and Bromberg JJ in Prain made the following observation (at [74]):
“...We do not think that it was impermissible for the Tribunal to note that the authorities “tended to place mental illness in the statutory category of disease”. We would not read the Tribunal's statements in [20] of its reasons as requiring the conclusion that mental illness must be categorised as a disease and, for that reason, could not also be classed as an “injury (other than a disease)”. Once again the Tribunal's reasons assumed, correctly, that whether or not a mental illness is to be categorised as a “disease” or, alternatively, an “injury (other than a disease)” will depend on the nature and incidents of the psychological change.”
The term “disease” is defined by s 5B to mean:
(a)“an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth.”
The term “ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
It is also important to note that the test of employment contribution for a disease (or aggravation thereof) is dependent on timing of the onset of the compensable “injury”. The Act was amended in 2007, replacing the “material degree” test with the “significant degree” test.
Consideration
First, the Tribunal agrees with the submission of the Commission that the veteran’s thoracic spine condition, being of a degenerative nature, is properly characterised as an ailment of gradual onset – Exhibit 2 R5 p. 539 para 4.23. Accordingly, the veteran’s condition is to be considered pursuant to s 5B of the Act.
As explained above, in order for compensation to be payable pursuant to s 14, the Tribunal must be satisfied that the veteran’s condition of thoracic spondylosis was contributed to, to the requisite degree, by his service.
The requisite degree will be:
(a)a material degree if the veteran first suffered from the condition prior to 13 April 2007; or
(b)a significant degree, being a degree that is substantially more than material, if the veteran first suffered from the condition subsequent to 13 April 2007.
Attention must be directed to s 7(4) of the Act which provides:
(4)“For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
It is tolerably clear to the Tribunal that the date when the veteran first sustained an injury as deemed by the operation of s 7(4) was 18 May 2018 when he was examined and assessed by Dr John Nguyen. The surgery notes of Dr Nguyen refer to the veteran complaining of chronic back pain and suffering compressed vertebrae from parachuting – Exhibit 2 R3
p. 34.
If the Tribunal is in error in this finding, then alternatively the date when the veteran first sustained his injury was 3 January 2019 when the CT of his thoracic spine, which has previously been discussed, was performed.
Whether the relevant date is 18 May 2018 or 3 January 2019 is not relevant, as both dates are subsequent to 13 April 2007, and, accordingly, the relevant contribution is to a significant degree.
The Tribunal has before it no evidence of the veteran having suffered an injury on
10 June 1992.
The first piece of medical evidence that supports the proposition that the veteran suffers from a disease of the thoracic spine are the surgery notes of Dr Nguyen.
There is, however, contemporary documentation which casts doubt on the veteran’s claim that he suffered an injury on 10 June 1992.
Of particular significance is a Paratroop Medical Certificate which was prepared by a Medical Officer on 12 June 1992, two days after the claimed injury. The examining Doctor found that the veteran – Exhibit 1 T23 p. 99:
“is free from minor ailments and injuries and is fit for paratrooping.”
As would be expected, the Medical Certificate was obtained as a precondition for the veteran to commence his parachute course.
The Department of Defence Service Records for the veteran disclose that he started his basic parachute course on 13 June 1992 and completed it on 27 June 1992 – Exhibit 1 T21 p. 78.
One of the significant problems in this matter is that the veteran made many claims about his service history which, on investigation, have either been incorrect or exaggerated. The Commission highlighted the extent of the inconsistencies in the Respondent’s Closing Submissions. It is not necessary for the Tribunal to set them out in the body of this decision. Apart from inconsistencies concerning the time that the veteran rendered service, there were also claims by the veteran that he served in Rwanda, Somalia, East Timor and Papua New Guinea. At the Hearing the veteran testified that in fact he had not served on any overseas posting and was not a member of the “Submarine Special Force” – Tr. 9.5.2023 pp. 20-21.
The clear evidence before the Tribunal discounts the possibility that the veteran suffered a parachute related injury on 10 June 1992. He did not commence parachute training until three days after that date.
Further, there is no contemporary medical or other evidence of the veteran suffering an injury to his thoracic spine whilst rendering service.
The Applicant’s own testimony about the events of more than 30 years ago was understandably vague and ultimately contradictory.
The Tribunal does not discount that the veteran may well have suffered an injury whilst rendering service, but the Tribunal has not been presented with any evidence that supports the veteran’s claim that he suffered an injury on 10 June 1992 as a result of parachute jumping.
Finally, attention should be directed to opinions expressed by the CMA which were supportive of the proposition that the rigours of service, including paratrooper experience, would have materially contributed to the onset of the veteran’s thoracic spondylosis.
The CMA’s opinion was based on the veteran’s self-reporting and in ignorance of the documentation referred to above. It is unremarkable that a CMA would opine that there may be a link between a spinal condition and parachute jumping. However, in this instance, the veteran’s claim that he was in fact injured in a jump cannot be sustained as the timing of the injury falls outside the time he was on parachute training. If that critical piece of information had been presented to the CMA, a different opinion may have been given.
As noted earlier, the Commission, correctly, accepts that the veteran is suffering from thoracic spondylosis. The Tribunal has found that, for the purposes of s 7(4), the injury was sustained on 18 May 2018, and that the veteran’s thoracic spondylosis is a disease, and therefore s 5B applies.
The Tribunal finds that the veteran’s claimed condition was not contributed to, to a significant degree, by his service. There is no evidence before the Tribunal that the veteran suffered an injury on 10 June 1992 other than his own account. The evidence, in fact, points in the opposite direction. It is inconceivable that the veteran would have been engaging in service parachute jumping at a time earlier than he commenced his course.
This taken together with the lack of any corroborating medical evidence and his own conflicting and incorrect accounts of his service render it not possible to link, to whatever degree, the veteran’s claimed condition with his service.
DECISION
The decision under review is affirmed.
I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Sosso
.................[SGD]................
Associate
Dated: 27 July 2023
Date(s) of hearing: 9 May 2023 and 29 May 2023 Date final submissions received: 17 May 2023 Applicant: By telephone Advocate for the Respondent: Ms Gillian Gehrke Solicitors for the Respondent: Sparke Helmore Lawyers
0
7
0