May and Military Rehabilitation and Compensation Commission

[2011] AATA 943

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 943

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0273 &
  2011/3482

VETERANS' APPEALS  DIVISION		)
Re		GORDON NEWTON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION 

Respondent

DECISION

Tribunal Senior Member Dr K S Levy RFD
Dr G J Maynard, Brigadier (Rtd), Member  

Date23 December 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

…...........[Sgd].........................

Senior Member

CATCHWORDS

COMPENSATION – Safety Rehabilitation and Compensation Act 1988 (Cth) – Military service as helicopter pilot in Australian Army – Landing incident while performing training drills – Liability accepted for injury to left shoulder – Liability rejected for claimed injury to right shoulder – No medical evidence or complaint of injury to right shoulder at time of incident – Current injury to right shoulder did not arise out of or in the course of applicant’s military service – Decision under review affirmed    

Evidence Act 1995 (Cth), ss 55, 56, 140

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14, 24, 27

Briginshaw v Briginshaw (1938) 60 CLR 336

Neat Holdings Pty Ltd v Karajan Pty Ltd (1992) 67 ALJR 170

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

23 December 2011	Senior Member Dr K S Levy RFD Dr G J Maynard, Brigadier (Rtd), Member
INTRODUCTION

1. On 3 April 2002 the applicant applied for worker’s compensation, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), for his left and right shoulder conditions. The claim related to an incident which occurred while he was employed as a pilot in the Australian Army. The left shoulder condition was accepted on 24 April 2006 as being due to military service.

2.      The right shoulder condition was not accepted on 31 March 2003. The applicant renewed his application for recognition of the right shoulder condition by a letter from his solicitors dated 12 June 2009. That application was rejected on 26 August 2009. On review, that decision was affirmed on 23 November 2010. On 26 August 2011 the applicant sought review of that decision by this Tribunal.

ISSUES

3.      The parties do not disagree as to the medical evidence and conditions from which the applicant claims to suffer. However, the aetiology of the conditions is in dispute. As a consequence, the Tribunal must make a determination of the following issues which have been set out by the respondent:

a)What is the nature of the right shoulder condition suffered by the applicant?

b)Is his right shoulder condition an “injury” or “disease” for the purpose of the Act (i.e. did it “arise out of”, or “in the course of”, his former military employment?

c)If the answer to (b) is ‘yes’, does the applicant suffer from an “impairment”?

d)If the answer to (c) is yes, is that impairment “permanent”?

e)If the answer to (d) is yes, is the degree of whole person impairment as a result of the injury greater than 10%, having regard to Table 9.1 of the Guide to the Assessment of Degree of Whole Person Impairment (“the Guide”)?

f)If the answer to (e) is ‘yes’, what is the applicant’s entitlement to lump sum permanent impairment compensation having regard to section 24 of the Act?

g)Is the applicant entitled to payment of compensation having regard to section 27 of the Act as a result of this right shoulder condition?

EVIDENCE

4.      The applicant, Gordon Newton, initially enlisted in the Australian Army and served in the Army Reserve for six years prior to enlisting in the Australian Regular Army to undertake flying training. He resigned his commission from the Army Reserve and enlisted as an officer cadet on 29 March 1988. He was subsequently commissioned again as an officer and employed as a pilot and discharged on 29 September 2002 with the rank Major.

5.      The incident which the applicant states is the cause of his present shoulder conditions occurred when he was supervising trainee pilots in a helicopter in 1994. As a result of what he described to the Tribunal as being the aerodynamics of that aircraft in a fairly difficult situation, he took over control of the helicopter from a student. He described the operation of the helicopter controls, which required the simultaneous operation of both of his legs and both of his arms. In bringing the aircraft under control, it made a hard landing. He then experienced stiffness and aching in his shoulders. A few days later, he attended the medical centre at Oakey Army Base and was told that he had suffered rotator cuff injuries to both shoulders.

Medical Evidence

6.      The applicant told the Tribunal that he had first consulted with Dr Jeff Brock two to three days after the incident. He stated that he had a painful back and that Dr Brock formed the view that he had a rotator cuff injury and that he was “grounded” from flying until he got a doctor’s clearance. There is no evidence in any medical record of that consultation. He also saw Dr John Newlands, Royal Australian Air Force doctor. On 15 March 1994, the record shows that Dr Newlands reviewed the applicant for his left shoulder injury, which was said to have occurred approximately six weeks earlier in an incident similar to that described in the application. However, Dr Newlands’ record shows Mr Newton reported immediate pain in his left shoulder and that he had pain for approximately one and half weeks, after which time it settled, although not completely. Dr Newlands noted that Mr Newton still had ‘”more than enough strength and ROM to continue pilot duties, but should have some physio for what seems like a low grade rotator cuff injury” (T-Document 6, Folio 29).

7.      The applicant also saw Dr David Lewis. Dr Lewis examined Mr Newton on 1 July 2002 and provided a report dated 18 August 2002. In his report Dr Lewis refers to Mr Newton’s left and right ankle joints, elbow joints, knees and both shoulder joints. He said the applicant appeared to have pain in both shoulder joints but that the left was more painful than the right (T-Document 7, Folio 61). Dr Lewis considered that the effect of the condition on both shoulders was permanent and was likely to have been so as at 14 December 1999. Dr Lewis also considered the applicant’s shoulder problems had a causal link to his military service (T-Document 7, Folio 62).

8.      In a further report by Dr Garth Eaton, dated 9 March 2009, Mr Newton was diagnosed, after the availability of x-rays, ultrasound and MR arthrogram, as having “[l]eft rotator cuff injury/chronic supraspinatus tendonitis” and “[p]robable right rotator cuff injury/chronic supraspinatus tendonitis” (T-Document 13, Folio 84). As a result of that report, the respondent accepted that the applicant had a left shoulder condition attributable to his military service and that he had a 10% whole person impairment under Table 9.1 of the Guide. That determination was also made as a result of the report by Dr Phillip Vecchio, dated 30 July 2009, where he also examined the applicant for his left shoulder condition.

9.      As mentioned earlier, the respondent issued a reviewable decision, dated 26 August 2009, denying liability for Mr Newton’s right shoulder condition. That decision was further reviewed and affirmed on 23 November 2010. The applicant then lodged an application for review in this Tribunal. Since that date, he consulted with and got a further report from Dr Sommerville, orthopaedic surgeon, who provided a report dated 14 April 2011. That report shows Dr Sommerville’s opinion that Mr Newton’s right shoulder condition was materially contributed to by his defence service, while noting that there was no record in the medical documents to support that opinion. In other words, Dr Sommerville’s opinion is based on the applicant’s description of the relevant medical history alone without other confirmatory evidence (T-Document 58, Folio 248). Dr Sommerville also noted however that there is an acromioclavicular joint osteoarthritis in Mr Newton’s right shoulder which is related to age and constitutional factors and therefore that aspect could not be regarded as being service related (T-Document 58, Folios 246 and 248). Dr Sommerville then opined that the whole person permanent impairment rating for Mr Newton’s right shoulder should be 10% under Table 9.1 of the Guide (T‑Document 58, Folio 248).  

10.     The respondent’s case relies upon the service medical records, a report by Dr Amanda Casperson dated 24 March 2003 (which found no evidence supporting injury to the right shoulder) and report by Dr John Talbot, orthopaedic surgeon, dated 1 March 2006. In his report, Dr Talbot referred to some basis for supporting an injury to the applicant’s left shoulder but made no specific comment about the right shoulder (T-Document 9).

11.     Following the submission of Dr Sommerville’s report, the respondent then referred the applicant for examination by Associate Professor Steadman, orthopaedic surgeon. Associate Professor Steadman provided a report, dated 6 June 2011, which  concluded that there was no evidence to develop a causal connection between Mr Newton’s present shoulder conditions and the helicopter incident in 1994 (T-Document 59, Folio 264). He regarded the present chronic right tendonitis to be the result of a degenerative disease (T-Document 59, Folio 266). He did however form the same diagnosis as Dr Sommerville but thought the condition in the right shoulder equated to a 5% whole person impairment under Table 9.1 of the Guide. Nevertheless, Associate Professor Steadman formed the view that there was no causal link of this degenerative condition in the right shoulder to Mr Newton’s previous military employment. He therefore concluded that there was a 0% whole person impairment under Tables 9.1 and 9.4 of the Guide (T-Document 59, Folio 266). His report also states that his diagnosis of right shoulder chronic tendonitis is not retrospective, based on the fact that there is no recorded medical evidence about an injury to the right shoulder, but also, that the radiological imaging did not reveal any features of previous injury. In Associate Professor Steadman’s oral evidence, his opinion of the origin and development of the present condition differed from that of Dr Sommerville. Associate Professor Steadman was asked to make further comment on Dr Sommerville’s report but, in his report dated 2 August 2011, he merely confirmed his previous opinion.

CONSIDERATION

12. Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an injury where a person is an employee and if the injury “results in death, incapacity for work, or impairment”. Compensation for injuries which result in permanent impairment is provided for in s 24 (and s 27 for non-economic loss).

13. The term “injury” used in s 14 is defined in s 5A of the Act. Section 5A(1) defines “injury” 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.

14. A “disease” is defined further in s 5B but is not relevant for present purposes. Of relevance in this matter is the meaning of “injury” in s 5A(1)(b), which is, in particular, “an injury (which is not a disease)” and which is an injury “arising out of” or “in the course of” the applicant’s employment.

15. Section 6 of the Act attempts to define, broadly, the types of circumstances which might or might not fall within the terms arising out of or in the course of employment. It includes all of the previous jurisprudence concerned with the definition of injury but is quite specific in excluding certain matters, particularly those which have an administrative character. This section does not detract from the ordinary meaning of injury or, as judicially defined, that for an injury to have been “in the course of employment”, the service must relate to “the actual performance of the work which the workman is employed to do” (Henderson v Commissioner of Railways (Western Australia) (1937) 58 CLR 281 at 294 per Dixon J; see also Commonwealth v Wright (1956) 96 CLR 536).

16.     There seems to be no dispute as to whether the scope of the incident claimed might be an “injury” within the meaning of that statutory term. The only question is as to the scope of the incident claimed and any injuries which resulted.

17.     There is evidence that an injury was reported by the applicant to the Oakey Medical Centre at some time shortly after the incident claimed. What is not clear is whether there was a report of an injury to the applicant’s right shoulder as there seems to be no contemporaneous report other than the record (T-Document 6, Folio 29) referring to the review of a left shoulder injury on 15 March 1994 by Dr Newlands. The applicant says that he reported it earlier to Dr Jeff Brock. He also says Dr Brock took him off flying duties for a period of time. There is no record of a reference to a right shoulder injury at that time in any record. Indeed, the entry at T‑Document 6, Folio 29 has a previous medical outpatient clinical record dated 19 August 1993. This record tends to show that there is no missing record between those two dates.

18.     The medical evidence all endeavours to deal with the claims in retrospect. There is evidence that Mr Newton has an accepted left shoulder injury. There is also evidence by MRI scan and reports by orthopaedic surgeons that Mr Newton also has a right shoulder injury which is tendonitis. Following radiological evidence and more recent examination, the strength of the evidence is twofold. Firstly, there is the report of Dr Sommerville who, after examining Mr Newton and the available medical evidence, states that the injury is consistent with what Mr Newton describes as having occurred during his military service. He says that Mr Newton has a symmetrical problem or problems in both shoulders. Dr Sommerville has rationalised that the radiological evidence supports a traumatic injury to the left shoulder and that Mr Newton has a symmetrical condition in his right shoulder. He says there is some age degeneration now; however, he cannot differentiate the conditions in the left and right shoulders and say that they can be in the same condition now but due to different originating conditions.

19.     Associate Professor Steadman, on the other hand, while agreeing with Dr Sommerville that Mr Newton has right shoulder tendonitis, is not satisfied, on the balance of probabilities, that the condition is attributable to the injury as described by the applicant. Associate Professor Steadman relies on there not being sufficient independent medical records and a temporal connection between a record of an injury and the present condition.

20.     We have considered all of the medical evidence. We prefer the opinion of Associate Professor Steadman over that of Dr Sommerville. Apart from the absence of any record of reporting the injury, we note that the annual medical records, over a lengthy period, do not make any reference to a right shoulder condition. In addition, while the applicant’s portrayal of the events is possible, his evidence was also that he had seen physiotherapists and chiropractors over an extended period while he was in the Army. These were private health providers which, he said, he consulted in Toowoomba. No record of these was provided to the Army at that time and no subsequent record has been sighted. Under cross-examination, he could not, unsurprisingly, recall dates of such appointments. However, he also could not recall the names of any of the persons who he claimed to have consulted with over that period. We found this evidence unconvincing. It could not outweigh the medical evidence, the absence of any historical medical records relating to the claimed injury and the explanation given by Associate Professor Steadman.

21. Sections 55 and 56 of the Evidence Act 1995 (Cth) relate to the relevance of evidence:

55 Relevant evidence

(1)       The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)       In particular, evidence is not taken to be irrelevant only because it relates only      to:

(a)       the credibility of a witness; or

(b)       the admissibility of other evidence; or

(c)       a failure to adduce evidence.

56 Relevant evidence to be admissible

(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)       Evidence that is not relevant in the proceeding is not admissible.

22.     The standard of proof is the civil standard of proof, that is, on the balance of probabilities (Repatriation Commission v Smith (1987) 15 FCR 327 at 335). That has been given statutory force (s 140(1) of the Evidence Act 1995 (Cth)). That latter Act also requires the Tribunal to take into account the nature of the cause of action, the nature of the subject matter, and the gravity of the matters alleged (s 140(2)). This subsection was enacted on the basis of the long-standing authority of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 362. The wording of the statute in s 140(2) suggests the more serious the context, the more robust should be the degree of precision required of the proof of evidence.

23. In this case, we are not satisfied of either the quantum of evidence or that the evidence of the applicant points to a link to the incident claimed and which is sufficient to meet the standard of the balance of probabilities. We take account of the varying nature of the standard set out in s 140(2) (see Neat Holdings Pty Ltd v Karajan Pty Ltd (1992) 67 ALJR 170). In the language of Dixon J in Briginshaw, we are not persuaded about the existence of the link between the incident claimed and Mr Newton’s present right shoulder condition, or of the probability of that connection.

24. As a consequence of the standard of proof required and our factual finding of the medical evidence which should be accepted, we find that the applicant has not demonstrated that he has an injury under s 5A of the Act; that is, that the condition “arose out of” or “in the course of” the applicant’s duties in the Australian Army, taking account of the description of the applicant’s case and the passage of time since the claimed incident.

25.     In answering the issues to be addressed, we respond to them as follows:

(a) What is the nature of the condition of the right shoulder suffered by the applicant?

26.     We find that the injury is right shoulder tendonitis.  

(b) Is his right shoulder condition an “injury” or “disease” for the purpose of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) (i.e. did it “arise out of”, or “in the course of”, his former military employment)?

27.     It may be the result of an “injury”. However, there is no evidence to the relevant standard of proof that that injury occurred “in the course of” or “arose out of” the incident as formulated.

28. In respect of the remaining questions/issues submitted to the Tribunal for determination, they need not be answered in view of the conclusions to the questions above. Therefore, the Commonwealth is not liable to pay compensation under s 14 of the Act. Consequently, we find that the applicant is not entitled to compensation under ss 24 or s 27 of the Act for the right shoulder condition which has been claimed.

29.     The decision under review is therefore affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD and Dr G J Maynard, Brigadier (Rtd), Member 

Signed: ......................[Sgd]....................................................
              Danielle Armstrong, Research Associate

Date/s of Hearing  5 December 2011 
Date of Decision  23 December 2011
Counsel for the Applicant         Sarah Scott-McKenzie 
Solicitor for the Applicant          Diane Masselos, Slater & Gordon 
Counsel for the Respondent     Charles Clark
Solicitor for the Respondent     Rachel Blake, Dibbs Barker