Mathers and Department of Veterans' Affairs - [2002] AATA 923

DECISION AND REASONS FOR DECISION [2002] AATA 923

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/856

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JAMES ROBERT MATHERS
  Applicant
           And    DEPARTMENT OF VETERANS' AFFAIRS
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date14 October 2002
PlaceSydney

Decision      The decision under review is affirmed. The applicant is entitled to no costs associated with this application.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – Lumbar back pain – injury allegedly occurred in 1972 – no notice or claim until 1999 – whether employee's claim can be accepted – claim held not acceptable – lack of evidence that employee was injured when employed by army

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("injury"), 123A. 124
Compensation (Australian Government Employees) Act 1971 ss 53, 54

REASONS FOR DECISION

14 October 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

THE APPLICATION

This is an application to the Administrative Appeals Tribunal ("the tribunal") by James Robert Mathers ("the applicant"), born 5 June 1938 (ex TD1/T10), for review of a decision of the Department of Veterans' Affairs dated 27 September 2000 (ex TD1/T20) affirming a primary decision of the respondent dated 11 May 2000 (ex TD1/T16). The respondent had rejected the applicant's claim for compensation in respect of low back pain, high blood pressure and ischaemic heart disease allegedly resulting from the applicant's employment as an officer in the Australian Army ("the army").
THE HEARING
The tribunal convened a hearing in this matter in Sydney on 2 May 2002. Mr John Fitzgerald of counsel represented Mr Mathers. Mr John Wallace of counsel represented the respondent. The tribunal heard oral evidence from Mr Mathers and his wife. The tribunal took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T22) provided by the respondent.
Exhibit TD2 - Supplementary documents (exhibits T1 – T13) provided by the respondent.
Exhibit A1 – Applicant's amended statement of facts and contentions, 30 April 2002.
Exhibit A2 – Report by Dr M Benanzio, orthopaedic surgeon, 10 December 2001.
Exhibit A3 – Statement of applicant (1 page), undated.
Exhibit A4 – Statement of applicant (3 pages), undated.
Exhibit A5 – Statement by Judith Mathers, undated.
Exhibit R1 – Applicant's army medical records.
Exhibit R2 – Applicant's army personnel records.
Exhibit R3 – Respondent's statement of facts and contentions, 14 December 2001.
Exhibit R4 – Report by Dr D Maxwell, orthopaedic surgeon, 15 October 2001.
Exhibit R5 – Statement by Mark Barry Simpson, 17 April 2002.
Exhibit R6 – Letter dated 22 October 2001 from Ms H Gill, Defence Personnel Executive, to Military Compensation and Rehabilitation Service.
Exhibit R7 – Applicant's statement of facts and contentions, 21 January 2002.
Exhibit R8 – Clinical notes of David Neil, chiropractor.
Exhibit R9 – Glenroy Chiropractic Clinic records.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

For the applicant to succeed the tribunal must be satisfied on the balance of probabilities that Mr Mathers has an injury, as defined in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). His case was initially (ex TD1/T10) that he developed low back pain, high blood pressure and ischaemic heart disease from the continual bending and lifting involved in packing medical stores being moved from Maroubra to Randwick. His problems were said to have their onset in 1973. He said he reported to the Regimental Aid Post ("RAP") at Randwick and was given two days off work (ex TD1/T17). By the time of the hearing Mr Mathers' account had altered. A new statement of facts and contentions (ex A1) was submitted to the tribunal on 1 May 2002. This advanced the date of the stores work to March 1972. This had certain advantages in corroboration of Mr Mathers' story of events.

It brought in references to incidents as early as 1966 when Mr Mathers engaged in jungle training at Canungra in Queensland during which he was said to have had intermittent episodes of lower back pain.
On 6 April 1972 Mr Mathers presented for medical treatment for "acute lumbago – on and off 2 years – worse the past few days". An x-ray was taken showing no bony lesion (ex R1/55). In cross-examination Mr Mathers said he did not recall this complaint of back pain.

The tribunal notes that Mr Mathers served in the army from 25 May 1956 to 24 May 1977 (ex A1).
Mr Mathers described relevant army experiences in his oral evidence. He was selected for service in Vietnam and so in 1966 at Canungra was engaged in jungle training. In Vietnam Mr Mathers' platoon engaged in an exercise where they simulated hitting a land mine while riding on trucks. They had to jump over the side of the truck and assume a position while carrying a 70-lb pack. He said he found that exercise affected his back. They had also to jump into a river with a pack from a height of 30 feet. Mr Mathers said he developed unreported lower back pain. The pain was not reported because he would have been returned to Sydney had he done so. The pain was intermittent.
Mr Mathers then addressed the events he said occurred in 1972. He was at some pains to convince the tribunal that events did occur in that year and not in 1973 as had appeared in the claim form. He associated the Maroubra/Randwick move with a rebadging that occurred whereby his group was changed from medical to ordnance corps. He also had a head operation at HMAS Penguin at about the time (ex R1/51). He thought the Maroubra/Randwick events were about six months after that. He said that the Maroubra/Randwick events "could" have occurred in 1972 and then said they "must" have occurred then. In cross-examination Mr Wallace, for the respondent, established that Mr Mathers had written the statement in ex A4 himself in Junee without assistance. In ex A4 he had cited 1973 as the year of the relevant injury. However, at the tribunal Mr Mathers said that he wanted to change the date of injury from 1973 to 1972 and that the correct date was 1972, "as far as he recalls". Mr Wallace referred Mr Mathers to his claim form (ex TD1/T10) which placed the event as in 1973. Mr Mathers said that he had tried to locate co-employees from the period but without success. There was discussion about the matters raised in conferences involving Mr Mathers, his solicitor and his barrister. Mr Wallace suggested that his legal advisers had told Mr Mathers it would be advantageous if the events occurred in 1972.
It was noted that Mr Mathers had told Dr Benanzio (ex A2) that he injured his back in 1973. It was noted that the versions of events in ex A2 and ex A4 differed. Mr Mathers told Dr Benanzio that the pain developed "when packing stores for transfer to Randwick … frequent bending and lifting developing ache across the low back without sciatica". In ex A4 he wrote that it was "shortly after the move that I started to experience bad back pain …". Mr Mathers said that the Benanzio version was correct. Mr Wallace queried why ex A4 was incorrect. Mr Mathers said that he had "answered to the best of his ability". Mr Wallace suggested that Mr Mathers was "lying about it". Mr Mathers responded that he had understood that ex A4 was for his compensation proceeding. He did not know that it would be used in a case at the tribunal.
Mr Wallace noted that Mr Mathers told Dr Benanzio that he had had no previous back pain, ie none before 1973. This was inconsistent with the evidence summarised above in paragraph 5 where Mr Mathers said he had back pain during exercises in 1966. It was also suggested that Mr Mathers had had low back pain on and off since 1970 (ex R1/55). Mr Mathers replied that he did not tell Dr Benanzio because he was not asked. He had not referred to the jungle training because he did not think it relevant.
At Maroubra Mr Mathers was doing stores work. Records were being transferred onto computer. He had some backache on standing and a sore calf muscle in the right leg.
The salient parts of ex A4 suggested that the work involved much lifting, bending and manoeuvring of heavy equipment such as sterilisers and beds onto pallets. Manual labour was used because the location did not permit use of a forklift. Mr Mathers supervised the loading of stores at Maroubra onto army trailers. Someone else supervised the unloading at Randwick. It was shortly after the move, said Mr Mathers, that he started to experience bad back pain. He wrote that he attended the RAP and was given 48 hours without duty.
He wrote that on discharge he declared mild back pain and discomfort in the lower back but was told, presumably by a medical officer, that it as nothing to worry about. He stated in ex A4 that the only accident he could recall was playing soccer at 2 Military Hospital one lunch time in about 1959 when he sustained a finger injury. He said that he was in the Royal Australian Regiment in the first two or three years of service and that involved heavy training and the carrying of heavy packs on the back for long distances. However, he could recall no "great problems other than aches and pains from time to time". He then described his post-service employment.
From 1972 to 1977, Mr Mathers told the tribunal, he had intermittent back pain. The frequency varied. It could be monthly or two-monthly and lasted from a few hours to several days. He always had a niggle in the calf muscle. He told the tribunal that he made no compensation claim. He gave no thought to it and his treatment was free in any event. He self-medicated with hot baths and used liniment. He said he made no other RAP visits but ex R1/9 shows that on 12 May 1976 he did visit the RAP for lumbosacral pain. He could recall no conversations with anyone in the 1972-1977 period other than with his wife. He was a Warrant Officer 2 and it would have been inappropriate to complain.
Mr Wallace put to Mr Mathers that Mr Mathers was not acting in the best interests of the army in not complaining of his injury at the time. He suggested that Mr Mathers had an obligation to report it. Mr Mathers disagreed saying that he "had a job to do". Mr Wallace noted also that Mr Mathers had not reported any back problem at Canungra. He queried whether Mr Mathers had a general attitude of not reporting. Mr Mathers said that he had no such attitude. He had reported the Maroubra back problems to the RAP later.
Mr Wallace took Mr Mathers to the medical record in ex R1/55 (see paragraph 3 above). This recorded back pain from 1970-1972 but did not refer to any stores work as a cause. Mr Wallace queried why this would be, if indeed stores work had been implicated. Mr Mathers could not say why he had not told the doctor examining him of the connection between the work and the injury. Tribunal member, Dr Campbell, who has forces medical experience, asked Mr Mathers to consider this question carefully because, in Dr Campbell's experience, an army doctor would have recorded the cause of back pain such as that described in ex R1/55 if told of the cause.
Mr Mathers told the tribunal about his army discharge. He had a health discussion with the examining doctor whom he told of his low back pain. The doctor had him bend forward sitting on the edge of a bed and "it felt tight". He then saw the sergeant and told him what he had told the doctor. The sergeant told him to lodge claims through the (predecessor to the) Department of Veterans' Affairs ("DVA"). There was no mention of claiming compensation. The final medical documents are in ex TD1/T4 and ex TD1/T5. In ex TD1/T4 a knee, back or joint injury is noted but refers only to the right knee. Mr Mathers agreed that he had signed this document but did not agree that he had ticked the boxes. He said that he was presented with many documents at that time. He insisted that he mentioned his back problem. In exTD1/T5 the only disabilities discovered by the army doctor in the final medical board on 21 April 1977 were bilateral deafness, eczema, psoriasis and overweight.
The final examination was not unique in omitting reference to Mr Mathers' back problems. There were medical examinations recorded back to 1973 and none of these, other than one in 1976, mentioned any back disability.
After discharge, in 1977-1978 Mr Mathers felt "a lot of stiffness" in his back. There was the same intermittent pattern as in 1972-1977 but it had become more severe. He had a tingling in the right leg calf muscle. He did light work in his wife's corner shop. He then went for chiropractic treatment at Glenroy Chiropractic Clinic on about six occasions. He experienced pain one day in 1978 while driving. From 1989 to 1999 there was no great change.
He had no contact with the Department of Defence at this time. He did have contact with the then Department of Repatriation and Compensation. He claimed (ex TD2/T1) a DVA Disability Pension in respect of loss of hearing, glasses for reading, eczema and backache on 27 April 1977, very promptly after service. On 24 May 1977 he lodged a claim for compensation under the Act that preceded the current Act, the Compensation (Australian Government Employees) Act 1971 ("the 1971 Act") but in respect of injuries sustained in 1966, ie at the time of operation of the Commonwealth Employees Compensation Act 1930 ("the 1930 Act") (ex TD2/T2). These injuries and diseases were eczema on feet, deafness and pyrogenic lesions on legs. There was no reference to compensation being sought for back pain. Mr Mathers thought this must have been an oversight. It was also possible that he was free of backache on 24 May 1977. At the tribunal Mr Mathers could not recall the form in ex TD2/T2. The tribunal pauses to observe that it is curious that Mr Mathers lodged a compensation claim when the tenor of his other evidence about his discharge was that he was not told about compensation and knew little, if anything, of how to claim compensation.
In cross-examination Mr Mathers said he may have obtained the compensation claim form from the sergeant he saw at discharge.
In his history with DVA Mr Mathers' claim for a pension for low back pain was rejected. He did not appeal. He claimed again in the 1980s. He was again rejected and that time he did appeal, but unsuccessfully. He claimed again in 1998, assisted by an advocacy group. DVA did not advise him to claim compensation at that time. Mr Mathers then heard of the Military Compensation and Rehabilitation Scheme through a friend in the advocacy group. This led to his claiming compensation in July 1999 (ex TD1/T10).
Dr J V Vaughan recorded on 6 February 1978 (ex TD2/T6) that the earliest back problems were lumbago on and off for two years prior to April 1972.
Dr D Maxwell recorded on 15 October 2001 (ex R4) that Mr Mathers developed back pain in 1973. There was no reference by Mr Mathers to any earlier back pain. He told Dr Maxwell that in 1974 and 1975 he worked in Melbourne doing mainly clerical work and had no real problems with his back. At discharge from the army, Mr Mathers told Dr Maxwell, he had mild back pain.
From 1978 to the late 1980s Mr Mathers said he had periods without any back pain. He had to be careful when sitting and lifting. He could not swivel. He had pain in the right calf. He saw many chiropractors. In cross-examination about chiropractics Mr Wallace noted that Mr Mathers told the Glenroy Chiropractic Clinic on 4 June 1978 that he had had a history of backaches for four years (ex R9). He had seen chiropractor David Neil on 11 March 1993 for his right shoulder and neck (ex R8), although he reported back pain in September 1993. At that time he was recorded as saying that his back "had gone on him 2 months ago last time".
He was living in Junee supported by his Defence Force Retirement and Death Benefits pension. However, his back "went altogether" once when he was on his hands and knees. He spent two days recovering. Such events could occur monthly. He also had right leg spasms from time to time when driving.
In cross-examination Mr Wallace took Mr Mathers to a statement he had supplied in support of his compensation claim (ex TD1/T13). Mr Mathers agreed with Mr Wallace that, in accordance with the claim form at ex TD1/T10/30, the information provided on the claim form and in attachments (such as ex TD1/T13) had to be "complete and correct". He agreed with Mr Wallace that aspects of ex TD1/T13 were not correct. He had written that he first suffered a back problem when moving medical stores. This was not accurate. Mr Mathers said that his intention was to confine his statement to an incident. He thought someone may have advised that do that. He could not recall who that might have been. Mr Wallace accused Mr Mathers of lying to the respondent in this document. He accused Mr Mathers of deliberately withholding evidence of his earlier back problems. Mr Mathers denied any intention to mislead. Mr Wallace suggested that in other respects Mr Mathers appeared confident in his recall of dates and times. Mr Mathers responded that he had thought references to earlier problems were unnecessary because "they" had asked for a specific incident.
Dr Campbell had some questions for Mr Mathers. Mr Mathers explained that he had served in the medical corps from his time as a corporal onwards. His trade was a clerk technician. With some initial hesitation Mr Mathers agreed that, as part of his qualifications for promotion, it was necessary for him to be familiar with medical documentation and its use. He was aware of a "form D11". Mr Mathers said that he had never filled in a D11. This was not correct, however. Mr Mathers completed D11 forms on 21 February 1963 (ex R1/144) and 14 April 1960 (ex R1/178). Mr Mathers clearly knew how to report an injury or illness and had done so on occasions.
Dr Campbell observed that Mr Mathers had frequently attended the RAP for a number of different conditions. Only twice had he reported back problems in 1972 and 1976. Dr Campbell queried why Mr Mathers had not returned to the RAP about his back if it was bad. Mr Mathers said that he went in 1972 when his back was "real bad". He said he thought he was given Indocid capsules on other occasions. This means that he would have had to report the problem to his superiors.
Dr Campbell referred Mr Mathers to the medical board report of 5 May 1967 (ex R1/100) preceding a medical downgrading. A number of medical conditions were referred to but there was no mention of a bad back. The back was never mentioned in medical board records. Mr Mathers said his low back pain never caused him much trouble until at about the time of discharge. He insisted that he wanted to tell the doctor conducting the final examination about it. He insisted that he did so but it was not recorded. The tribunal noted that the doctor conducting the final examination noted a good number of conditions (ex TD1/T5).
Mrs Mathers gave evidence. She had provided a statement (ex A5). She married Mr Mathers on 10 August 1957. He had had back problems for much of their married life. She recalled the first instance as on 25 April 1965. He had more problems with his back when working at Maroubra in the early 1970s. When moving the medical stores at Maroubra he was "in a lot of pain when he came home of an evening". He had difficulty with his back when getting up in the morning. She recalled particular incidents from 1972 when his back "seized up". When he left the army his back was less bad than it had been. His leg pain grew worse in 1978. His back has grown worse over the years and now "goes on him" every second or third day for one to two days or more. Mr Mathers did not take medications for the pain. Mr Mathers said that when he went to the RAP he was given Aspros. He did not tell Mrs Mathers what had brought on his back pain. Mrs Mathers has rubbed Dencorub into Mr Mathers' back when it has been bad. Mrs Mathers recalled that at one stage in about October 1978 Mr Mathers was to go to hospital for his back. He could not secure a bed so he had a week in bed at home instead.

Mr Mathers relies on events allegedly occurring in 1972 as the cause of his low back pain. The law in force at that time was the 1971 Act. The effect of ss 123A and 124 of the Act is that an employee can receive compensation under the Act in respect of an injury that occurred when the 1971 Act was in force provided he or she could have recovered compensation under the 1971 Act. It is thus necessary to see whether Mr Mathers could have succeeded under the 1971 Act.
As an absolute first step to recovery of compensation under the 1971 Act it was necessary to satisfy s 53 of that Act. If s 53 was not satisfied, the 1971 Act had no application to the injury. Section 53 of the 1971 Act required an employee to give notice of an injury o the Commonwealth as soon as practicable after the injury:
53. (1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth-
(a) as soon as practicable after the occurrence of the injury;
(b) if the employee was not, immediately after the injury, aware that he had sustained an injury-as soon as practicable after he became so aware; or
(c) if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.
(2) This Act does not apply in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee unless notice in writing of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease, as the case may be, was served, as prescribed, on the Commonwealth-
(a) as soon as practicable after the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
(b) if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.
…
(4) Where-
(a) a notice purporting to be a notice referred to in a preceding sub-section of this section has been served on the Commonwealth;
(b) the notice, as regards the time of service or otherwise, failed to comply with the requirements of that sub-section; and
(c) the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,
the notice shall be deemed to have been served in accordance with that sub-section.
In the present case Mr Mathers did not notify until 1999 an injury that allegedly occurred in 1972, a delay of 27 years. Mr Wallace argued against the application of the provisions in s 53(4) excusing an employee from the consequences of non-compliance with s 53. He submitted that:

The Commonwealth would be prejudiced if the claim were now admitted. Potential witnesses from 1972 cannot be located. Attempts had been made as is clear from the statement by Mr M B Simpson, a private investigator, dated 17 April 2002 (ex R5). In addition, treatment may have assisted Mr Mathers had his disability been appropriately notified. This could have reduced any liability that may fall on the respondent at this time, if the claim is admitted.
The failure to notify did not result from the death or absence from Australia of any person.
Mr Mathers cannot plead ignorance. As noted above he had had experience with D11 forms and knew how to notify injuries or illnesses and how to claim compensation. As he agreed with Dr Campbell, Mr Mathers was used to dealing with documentation of the very nature of D11 forms in his work.
Mr Mathers cannot plead mistake for many of the same reasons as apply to ignorance. It was suggested that he was misdirected towards claiming against the veterans' entitlements system. The tribunal is satisfied on the balance of probabilities that a Warrant Officer doing the type of work done by Mr Mathers would be well acquainted with the difference between workers' compensation and veterans' benefits. Such an officer would claim against both systems as indeed Mr Mathers did here, albeit omitting to refer to his back condition in his compensation papers.
The tribunal is not satisfied that Mr Mathers had any other reasonable cause for failing to notify promptly the injury that had allegedly occurred. He was a regular attender at the RAP. He had lodged other compensation documentation over the years. None of the material raised to explain Mr Mathers' reticence or oversight in this instance was convincing given his work and medical history. It was suggested that the sergeant supervising Mr Mathers' separation from the army misled him into applying only for veterans' benefits. This is not acceptable. Mr Mathers actually lodged a compensation claim on discharge, but for conditions other than his back. Mr Mathers thought he obtained the necessary compensation forms from the sergeant.

The tribunal therefore accepts Mr Wallace's submissions and finds that the 1971 Act was not applicable to Mr Mathers' alleged injury. The tribunal gave consideration to Mr Fitzgerald's arguments in relation to s 53. The arguments suggesting confusion or mistake or ignorance, and suggesting misinformation by the sergeant, have been addressed and rejected. It was submitted that by claiming a Disability Pension in respect of the back condition Mr Mathers had notified the Commonwealth as an entity. The tribunal has its doubts about this argument. The Commonwealth for the purposes of the 1971 Act was the Commissioner for Employees' Compensation. The purpose of s 53 was clearly to alert compensation authorities of a possible claim with a view to securing medical and other evidence promptly. Section 54 of the 1971 Act also required a claim to be lodged within six months of an injury or awareness of an injury. Section 54 expressly required lodgement with the Commissioner for Employees' Compensation. There was no reason for the Department of Repatriation and Compensation to alert the Commissioner for Employees' Compensation of the Disability Pension claim. Notice to that department was not equivalent to notice to the Commissioner.
Even if the claim had been admitted, the tribunal was not minded to accept that compensation was payable. Apart from Mr Mathers' own evidence, uncorroborated by any medical practitioner, there was no evidence that Mr Mathers' army service contributed in any way to his back condition. There is scant evidence of any back symptoms experienced in the army and no corroborative evidence that Mr Mathers' back condition was caused or exacerbated by his stores work at Maroubra in 1972 or 1973. The tribunal noted Mrs Mathers' evidence on this point but found it difficult to accept such evidence as a viable substitute for some corroborative medical assessment. The tribunal noted that Dr Benanzio found that the "accident of 1973 has been a substantial contributing factor to his present condition" (ex A2/3). However, this was an opinion explicitly provided "[a]ccording to the history as given to [him]". Dr Maxwell's report (ex R4) provided no comfort for Mr Mathers.
CONCLUSION
The tribunal has found that Mr Mathers' claim was not acceptable in accordance with the 1971 Act. This has the effect that the claim is not acceptable under the Act.
DECISION
The decision under review is affirmed. The applicant is entitled to no costs associated with this application.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date of hearing  2 May 2002
Date of decision  14 October 2002
Counsel for the applicant         Mr J Fitzgerald
Solicitor for the applicant         Rockliffs Solicitors & Attorneys
Counsel for the respondent     Mr J Wallace
Solicitor for the respondent     Sparke Helmore Solicitors