Novak and Repatriation Commission
[2003] AATA 564
•17 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 564
ADMINISTRATIVE APPEALS TRIBUNAL )
)No N2001/478 and N2001/1749
VETERANS' APPEALS DIVISION ) Re Richard Novak Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date17 June 2003
PlaceSydney
Decision The tribunal affirms the decisions under review.
...............................................
RP Handley
Deputy President
CATCHWORDS
REPATRIATION COMMISSION – disability pension – whether lumbosacral radiculopathy was as a result of defence service – general rate and Special Rate – necessity to establish the degree of disability from the condition – examination of the Applicant’s service record and history of accidents - examination of the Applicant’s history of workers compensation claims – examination of the history given by the Applicant to various doctors regarding his injuries and how they occurred – found that the Applicant did not tell his treating doctors the whole truth as to his injuries – the Tribunal is not satisfied that the Applicant’s lumbosacral radiculopathy is defence-caused – assessment of disability pension found to be correct - held that the Tribunal affirms the decisions under review.
Veterans Entitlement Act 1986 ss 24(1), 68(1)(a), 120(4)
REASONS FOR DECISION
17 June 2003 Mr RP Handley, Deputy President 1. This matter involves applications by Richard Novak (“the Applicant”) for a review of two decisions of the Veterans’ Review Board (“the VRB”): (1) file No N2001/478, a decision of the VRB made on 9 March 2001 to affirm a decision of the Repatriation Commission (“the Respondent”) that increased the rate of the Applicant’s disability pension to 50% of the General Rate; (2) file No N2001/1749, a decision of the VRB made on 24 October 2001 to affirm a decision of the Respondent that refused the Applicant’s claim for lumbosacral radiculopathy.
2. At the hearing, the Applicant was represented by Reg Sherlock of the Veterans’ Advocacy Service of Legal Aid New South Wales and the Respondent was represented by Stephen Modder of the Advocacy Section of the Department of Veterans’ Affairs. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the “T Documents”) together with the documents tendered by the parties. The Applicant, Dr Y.A.E. Ghabrial and Dr Michael Tarrant gave evidence at the hearing.
Background
3. The Applicant, Mr Novak was born on 30 September 1954 and is aged 48. He served in the Australian Army for three years from 23 January 1973 to 22 January 1976. He injured his left ankle in a fall during Army training in late September 1974 as a result of which he has been diagnosed as suffering from “laxity lateral ligament left ankle with tenodesis”.. He injured his lower back in 1973 in a motor cycle accident and claims to have injured his back in 1974 in a lifting accident. He also injured his back in 1981/1982, 1984 and 1989 while working as a storeman and packer for Tubemakers. After the 1989 injury, his back was treated conservatively but, in 1990, he underwent a laminectomy. He was unable to return to work following the surgery and received a workers’ compensation settlement of $95,000 in 1992. Mr Novak suffered a further back injury on 18 September 1996 while he was undertaking a training program with Hunter Regional Tourism Organisation when a chair on which he was sitting collapsed. He lodged a claim for compensation and received a compensation settlement of $100,000 on 14 April 1999. On 8 September 2002, he again injured his back when he fell in his backyard at his home.
4. On 28 June 2000, Mr Novak lodged a claim for an increase in the rate of his disability pension on the ground that his ankle condition had deteriorated. On 20 November 2000, the Respondent decided to increase the rate at which the disability pension was paid to Mr Novak to 50% of the General Rate. On 9 March 2001, this decision was affirmed by the VRB and, on 11 April 2001, Mr Novak lodged an application for a review of this decision by the Tribunal.
5. On 6 December 2000, Mr Novak lodged a claim for aggravation of back pain due to his left ankle condition. On 12 January 2001, the Respondent refused his “claim for Lumbosacral Radiculopathy”. On 24 October 2001, this decision was affirmed by the VRB on the ground that it was “reasonably satisfied that the material before it does not raise a connection between the applicant’s lumbosacral radiculopathy and the relevant service as required by the Act”. On 18 November 2001, Mr Novak lodged an application for a review of this decision by the Tribunal. At the commencement of the hearing, Mr Sherlock said that the Applicant seeks to have his lumbosacral radiculopathy accepted as “defence-caused” and to establish that he is qualified for payment of disability pension at the Special Rate.
Applicable Law
6. Mr Novak’s service in the Australian Army from 23 January 1973 to 22 January 1976 constitutes eligible “defence service” as defined in s 68(1)(a) of the Veterans’ Entitlements Act 1986 (“the Act”). Thus, the standard of proof to be applied in deciding relevant matters is, pursuant to s 120(4), that of “reasonable satisfaction”. The date of effect in respect of any more favourable determination (as per s 56G(2)) in the case of the first application is 28 June 2000, and in the case of the second application is 25 December 2000.
7. If it is established that the Applicant is incapacitated by lumbosacral radiculopathy which is a defence-caused injury or disease in respect of which the Commonwealth is liable to pay pension by way of compensation pursuant to s 70(1), the Applicant claims he is qualified for payment of pension at the Special Rate. Pursuant to s 24(1), in order to be eligible for payment of a pension at Special Rate, an applicant must fulfil all the criteria set out in sub-paragraphs (aa) to (d) of the subsection:
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran has not yet turned 65 before the claim or application was made; and
(a) eiher:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings n his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
Evidence
Richard Novak (the Applicant)
8. Mr Novak was referred to Army Medical Attendance and Treatment records dating from 1973 (R16 p3). He said an entry dated 22 October 1973 relates to a motor cycle accident he had in Newcastle on 14 October 1973 when a car failed to give way to him and he hit the car, injuring himself including his back. He was off duty at the time, on leave from his posting to the Second Engineers Regiment in Liverpool, Sydney. He was told to rest and given paracetemol.
9. Mr Novak could not recall a second entry dated 25 October 1973 which refers to him suffering backache after not very heavy lifting. However, he remembered getting treatment for his back on 14 November 1973 and 29 November 1973. He said these entries were all related to his motor cycle accident. He suffered pain in the low back and legs and was conscious of the limitations on what he could do as a result of the injury. Mr Novak acknowledged that he was riding a motor cycle again on 10 December 1973: in an entry on that date, it is recorded that he sought treatment for an insect bite on his neck while riding his motor cycle. He also acknowledged that there are no further entries concerning his back in 1974.
10. Mr Novak was referred to his Army Discharge History Questionnaire completed on 11 December 1975 (R7 p52). This records that he suffered a “back injury from lifting during service in 1974”. He said he was lifting a tarpaulin in the stores, felt severe pain and was immobilised. He reported to the Regimental Aid Post where he was given paracetamol and a back rub and put on light administrative duties for a while. Mr Novak said he saw Army doctors on a number of occasions in 1974 and said his back was troubling him, even though this is not recorded in the Army Medical Attendance and Treatment records.
11. Mr Novak said he joined the Army in order to have a future. He was 100% fit when he joined but came out with medical problems. He had hoped to attend the Officers’ Cadet School and to achieve advancement and stability. Instead, his ankle and back injuries restricted his ability to fulfil his soldiering duties so he sought an honourable discharge. On discharge, his left ankle had still not resolved: he was limited in what he could do and walked with a limp. He had surgery on the ankle in September 1975 but the wound developed an infection which slowed the healing process. On discharge, he felt “pain all the time”.
12. Mr Novak said it was about 12 months after discharge before he got a job. It took a while for his condition to settle. He did not do any fruit picking although he probably told doctors that he did – he does not know why. His first job was as a car salesman with Kloster Ford in Newcastle where he worked for nine to 12 months. He did not reveal his ankle and back problems on joining the company because he thought this might affect his position adversely. Mr Novak remembered returning from Sydney on one occasion having collected a car and being “in agony”.. He did not, however, injure his back while working for Kloster Ford.
13. After leaving Kloster Ford in about 1978 or 1979, Mr Novak worked as a storeman and packer: for a few months at a chicken processing factory and then for a few months at Mallesons, a timber merchant. In obtaining these jobs, once again he did not reveal his prior injuries and did not suffer further such injuries. He was, however, conscious of his back and ankle problems and took quite a lot of sick leave.
14. In 1980, he got a job as a storeman and packer with Tubemakers, again not revealing his prior injuries. His back injury still had not resolved at that time. He was handling steel products for construction work. This manual work involved heavy lifting at times, although they had equipment for this. Mr Novak said he did not have any specific injuries to his back between 1974 and 1982 but he was always conscious of niggling pain and had occasional spasms of pain. His sleep was also disturbed. He was asked about a clinical note by his treating doctor, Dr C.Y. Cheung on 28 April 1981 referring to “back ache” (R10 p9). Mr Novak said he did not remember this.
15. While working for Tubemakers, Mr Novak suffered three further injuries to his back. In 1982, when lifting fittings, he felt a sharp pain in his back and legs. He received conservative treatment: rest, paracetamol and light duties. In 1984, when lifting stores, he felt pain in his back and legs and was immobilised. On 22 May 1984, Dr Cheung notes that Mr Novak sprained his back on 19 May 1984 lifting something heavy at work (R10 p11). He was given a back rub and heat packs and put on light duties. Then on 10 January 1989, he suffered “excruciating pain and immobility” when lifting materials. Initially, he was given heat packs and put on light duties. In 1990, Dr Isaacs recommended surgery but sent him to see Dr Ghabrial for a second opinion. Dr Isaacs’ letter of referral to Dr Ghabrial dated 10 November 1989 (R11 p15) stated that Mr Novak “first injured his back in 1982”. Mr Novak said he had not mentioned the back injury while he was in the Army because this matter was focussed on his history with Tubemakers. Mr Novak agreed that he had also not given his then treating doctor, Dr C.Y. Cheung, details of his injuries in the Army.
16. Mr Novak said he was on light duties for about three months after the accident on 10 January 1989. Eventually, Tubemakers said they had no further work for him and he was paid off, although he did not get a redundancy payment. However, he was still classified as an employee for about two years.
17. Mr Novak said the 1990 surgery, which was performed at Macquarie Hospital on 24 April 1990, alleviated his back pain at the time. After the surgery, Dr Isaacs referred him for hydrotherapy. Mr Novak was asked about a letter written by Dr Isaacs dated 22 September 1990 (R11 p38) in which Dr Isaacs stated:
I spoke with him on the 23rd May, 1990, on the telephone and he told me that he had lost all of his pain in his back and in the legs …
Mr Novak said he thinks the surgery helped.
18. Mr Novak said after the termination of his employment by Tubemakers, he was unemployed for the next six years even though he looked for work. In 1996, he commenced as a trainee in hospitality and tourism with Hunter Regional Tourism Organisation under the Commonwealth Government’s Working Nation program. About two weeks after he commenced as a trainee, a chair on which he was sitting collapsed and he injured his back. He felt severe pain and was immobilised. He has not been employed since. His new treating doctor, Dr H. Lim, referred him to Dr Isaacs for specialist reports and to Dr Marc Russo of the Hunter Pain Clinic for pain management.
19. Mr Novak made compensation claims in respect of both his 1989 and 1996 back injuries. He acknowledged that he did not tell the doctors he saw in relation to those claims of the injuries he had suffered during his Army service because he thought it would be prejudical to his claims. He did not lie to the doctors but he did not tell the whole truth. Mr Novak received a compensation settlement of $95,000 in respect of his 1989 injury and of $100,000 in respect of his 1996 injury. Mr Novak said that the solicitors he employed for the claim in respect of his 1989 injury, Brae and Craig, were the Union’s solicitors. The solicitors he employed in relation to the claim for his 1996 injury, Reid and Reid, were recommended to him. Mr Novak confirmed that on 8 September 2002 he suffered a further injury to his back when he fell in the backyard at his home.
20. Mr Novak was asked about various medical reports filed in the Compensation Court of New South Wales in relation to his 1996 injury compensation claim. A report by Dr George Weisz, Orthopaedic Surgeon, dated 10 January 1997 makes no reference to his Army injuries (R12 p27). Mr Novak said he probably did not tell Dr Weisz about these because they were prejudicial to his case. With regard to a report of Dr Kim Ostinga, Orthopaedic Surgeon, dated 16 June 1997 (R12 p39), Mr Novak said he told Dr Ostinga that his back symptoms were much worse after his back was injured in the collapse of the chair. He did not tell Dr Ostinga of his Army injuries. In a report by Dr Gregory Carr, Rheumatologist, dated 18 March 1997 (R12 p51), Dr Carr states Mr Novak told him “he first hurt his back when working as a storeman and packer with Tubemakers in Newcastle in 1989”.. There is no mention of his Army injuries. A report by Dr Gregory Hession, Occupational Specialist, dated 9 January 1997 (R12 p57) makes no mention of any back injury prior to 1989.
21. In relation to the present proceedings, Mr Novak said that he did not appear at the VRB hearing on Mr Sherlock’s recommendation. Mr Novak was asked about his examination by Dr Mark Burns, Occupational Physician, on 18 July 2001, at the request of the Respondent. Mr Novak agreed there is no mention of his 1996 accident in Dr Burns’ report of 18 July 2001 (N2001/1749 – T11). Mr Novak said Dr Burns probably did not ask him about this.
22. Mr Novak saw Dr Ghabrial in August 2002 at Mr Sherlock’s request. He did not think that Dr Ghabrial remembered him from March 1990 (Transcript 6 March 2003 p38). Dr Ghabrial’s report of 16 August 2002 (A1) makes no mention of Mr Novak’s 1989 or 1996 injuries. Mr Novak said Dr Ghabrial was probably not aware of these. Mr Novak did not lie to Dr Ghabrial but he did not tell him the whole truth. Mr Novak said, nevertheless, his handwritten statement about his back injury in 1973 and 1974 is correct (A4).
23. Mr Novak was asked about his interview with Dr Tarrant on 22 February 2002. Mr Novak said the interview lasted only about 25 minutes. Dr Tarrant would not listen. He only spent a few minutes asking about Mr Novak’s back. He refused to listen to the summary of issues Mr Novak had prepared. Mr Novak said he felt insignificant and angry and distressed. He wrote his account of the interview (A5) after speaking with Mr Sherlock about what had happened. The Tribunal notes that it is not clear when Mr Novak’s undated account was written although Mr Novak at first said the account was written shortly after the interview and then, on being asked again, he said it was probably written on the same day. The dates on which the account was faxed were 18 March 2002 (the first six pages) and 20 March 2002 (a further additional page).
24. Mr Novak was asked about how his left ankle currently affects him. He said he is unable to put too much weight on the ankle. He uses a walking stick to take the pressure off his left ankle and the stick and his right ankle bear most of his weight. He walks with a limp. Mr Novak also has left and right shoulder problems, arthritis in both knees, and a hearing impairment for which he has received compensation.
Dr Y.A.E. Ghabrial
25. Dr Ghabrial provided a report dated 16 August 2002 (A1). He is an Orthopaedic and Spinal Surgeon and Director of the Department of Orthopaedic Surgery at the Royal Newcastle Hospital. Dr Ghabrial said it is likely that the back injury suffered by Mr Novak in 1973 and aggravated by the lifting incident in 1974 caused damage to the disc at L5/S1 and is responsible for the later degeneratives changes seen at that level. Such degenerative changes take many years to develop and early damage makes a person more vulnerable to spinal injury later in life. It is also not uncommon for lower limb injuries to result in later back pain as a result of the additional strain on the spine. Dr Ghabrial was referred to Mr Novak’s description of the 1974 incident (A4). He said, like the 1973 incident, this could have involved an injury to the L5/S1 annulus.
26. Dr Ghabrial said that he trained both Dr Isaacs and Dr Tarrant. He has worked with Dr Isaacs for many years. Dr Ghabrial is aware that Dr Isaacs referred Mr Novak to him for a second opinion in late 1989. When Dr Ghabrial examined Mr Novak on 14 August 2002 for the purpose of preparing his report, Mr Novak told Dr Ghabrial that he had seen him in 1990. Having examined additional documentary material at the request of Mr Sherlock, Dr Ghabrial is now aware of Mr Novak’s 1989 and 1996 injuries. He did not have access to his 20 March 1996 report (R16 p23) when he saw Mr Novak on 14 August 2002. Dr Ghabrial noted that Dr Isaacs, in a letter of referral to Dr Ghabrial dated 10 November 1989 (R11 p15) made no mention of Mr Novak’s Army service. Dr Ghabrial said that knowing more of Mr Novak’s history does not lead him to change his view. The severely degenerative disc at L5/S1 would have taken many years to develop – longer than the eight years between when he started work at Tubemakers and his injury in January 1989.
27. Dr Ghabrial was referred to Mr Novak’s Army Attendance and Treatment Card for 1973 (R16 p3). He said that the symptoms described there suggest a soft tissue injury and are consistent with Mr Novak having suffered a tear in the annulus of the disc at L5/S1. Such an injury may or may not heal. In Dr Isaacs’ letter of referral to Dr Ghabrial dated 10 November 1989 (R11 p15) he refers to “a small tear of annulus fibrosis, posteriorly at the L4-5 level and a severely degenerated disc at L5-S1 level”. The L4/5 tear is attributable to the injuries of the 1980s.
28. A report by Dr Isaacs dated 3 June 1997 (R16 p64) refers to an MRI study carried out on 24 February 1997 which showed “fibrotic change surrounding the left S1 nerve root at the L5-S1 level”. Dr Ghabrial said the fibrotic change is consistent with the surgery performed on Mr Novak’s back in 1990. The pain in Mr Novak’s left leg before surgery referred to by Dr Isaacs suggests significant problems at L5/S1. However, there is no indication of involvement of the nerve roots at the L4/5 level.
29. Currently, the main problem with Mr Novak’s back is the fibrotic change at L5/S1 and a minor problem in the protrusion at L4/5. Dr Ghabrial was referred to a letter from Dr Marc Russo of the Hunter Pain Clinic dated 6 November 2000 (N01/1749 T22) where he describes treating Mr Novak for “chronic low back and lumbosacral radiculopathy following a laminectomy procedure in 1990”.. Dr Ghabrial said lumbosacral radiculopathy is a loose description for Mr Novak’s condition. To confirm this, it would be necessary to conduct nerve conduction studies.
30. Dr Ghabrial was referred to Dr Cheung’s clinical notes for the period 1980 to 1990 (R10). Dr Ghabrial confirmed that apart from prescribing heavy medication, there was no indication of Mr Novak suffering any additional injury or problems with his lower back other than those already identified. The fact that Dr Cheung was prescribing heavy analgesics such as Codral Forte was an indication that Mr Novak was complaining of severe pain. However, this could have been prescribed in respect of pain resulting from Mr Novak’s ankle condition.
Dr Michael Tarrant
31. Dr Tarrant is an Orthopaedic Surgeon who practices in Lambton, a suburb of Newcastle.. Dr Tarrant has worked in orthopaedics for 18 years, of which 15 years have been in private practice. At the request of the Respondent, he provided reports on Mr Novak on 23 February 2002, 27 August 2002, 8 October 2002, 28 January 2003 and 7 February 2003. In his report dated 23 February 2002, Dr Tarrant, whilst accepting that Mr Novak’s ankle condition was service-related, said there was “no history to support that events between 1973 and 1976 have contributed to his lower back”. In evidence, Dr Tarrant said that at the interview on 22 February 2002, Mr Novak did not mention that he had a motor cycle accident in October 1973.
32. Dr Tarrant said people often get back pain after a motor cycle accident. He said Mr Novak’s Army Attendance and Treatment Card entries for 1973-1974 (R16) indicate that any injury to Mr Novak’s back was not serious and are consistent with a soft tissue injury. For most people, such injuries have resolved within three months and are unlikely to have any long term sequelae. Dr Tarrant noted that the entry for 10 December 1973, treatment for a “insect bite on left side of neck while riding motor cycle”, shows that Mr Novak was riding a motor cycle again in December 1973.
33. Dr Tarrant acknowledged that the motor cycle accident could have caused a tear to the annulus at L4/5, but, if this had occurred, Mr Novak would probably have had a lot of problems and been laid up for a while. Mr Novak’s service records do not record the symptoms one would expect with such a tear.
34. Dr Tarrant was asked about Dr Ghabrial’s evidence. Dr Tarrant said in his opinion it is unreasonable to attribute the arthritis in Mr Novak’s back to an accident in the early 1970s. Dr Tarrant noted that in Dr Ghabrial’s report of 16 August 2002 (A1), there is no reference to Mr Novak’s history of workers compensation injuries. With no history and no clinical records of service related back injury in 1973/1974, the condition could just as easily be the result of degenerative disease. L4/5 and L5/S1 are the discs most commonly affected by such disease – as a result of people getting shorter through age. Dr Tarrant said the rate of degenerative change can vary markedly between one person and another. Mr Novak’s back condition in 1989 which was attributed to a 1982 accident, could have been due to degenerative disease, but he acknowledged that degenerative disease requiring a person to have surgery at the age of 36 was uncommon. Dr Tarrant was asked about Mr Novak’s claim to have injured his back in 1974. He said if there is no record of the injury it is unlikely to have been significant.
35. Dr Tarrant said that very few patients undergo a laminectomy in order to address back symptoms alone. Usually, the person will also have leg symptoms. He said reconstruction surgery on a person’s ankle or knee can cause localised arthritis, but an ankle reconstruction is very unlikely to cause arthritis in the back.
36. Dr Tarrant was asked about Dr Ghabrial’s evidence in relation to a MRI taken in February 1997. Dr Tarrant said the fibrotic change revealed is a response to surgery. Dr Tarrant said, in his opinion, Mr Novak is suffering pain arising from chronic mechanical changes and degenerative disease.
37. Dr Tarrant was asked about Mr Novak’s complaints about Dr Tarrant’s conduct of the interview. He said the criticisms are unfounded. He took a detailed history and did an adequate examination. Dr Tarrant said his handwritten notes indicate the interview was not as short as Mr Novak suggested. A standard medico-legal consultation is usually 30 to 40 minutes in length. Veterans are often angry at having to have an examination and direct that anger at the examiner. They also commonly underestimate the time such an examination takes.
Written Submissions
Applicant
38. Mr Sherlock, for the Applicant, said the Applicant contends that his defence service contributed to his lumbosacral radiculopathy in two ways: first, the injuries at work in 1973 and 1974 “contributed in some measure to he condition claimed” and, second, that his defence-caused left ankle injury affected his gait in such a way as to contribute. Mr Sherlock said while Mr Novak’s motorcycle injury in 1973 occurred while he was off duty, he also suffered an injury at work from lifting between 22 October 1973 and 25 October 1973. The second injury was in 1974. Mr Novak has provided evidence relating to both those injuries and to his continuing back problems from 1975.
39. Mr Sherlock referred the Tribunal to Dr Ghabrial’s evidence with regard to the significance of the Mr Novak’s 1973 and 1974 injuries in the development of his lumbosacral radiculopathy. Dr Ghabrial said the marked degeneration of Mr Novak’s back at L5/S1 takes many years to develop and relates to the 1970s rather than the 1980s. The symptoms described on Mr Novak’s Army Attendance and Treatment Card for 1973 suggest a soft tissue injury and are consistent with a tear in the annulus of the disc at L5/S1. The 1974 injury might again have involved damage to the annulus.
40. Mr Sherlock submitted that these old injuries were a partial cause of the need for surgery in 1990 and a primary cause of the problems that arose after Mr Novak’s injury in 1996. Mr Sherlock said Mr Novak also contends that the alteration to his gait caused by his accepted left ankle condition contributed to the degenerative changes in his spine at L5/S1 and L4/5. Dr Ghabrial gave evidence of the effect of lower limb injuries on the biomechanics of the spine and on the connection between Mr Novak’s left ankle condition and back problem.
41. Mr Sherlock invited the Tribunal to prefer Dr Ghabrial’s expert evidence over that of Dr Tarrant. Dr Ghabrial was wholly professional throughout and provided a clear and persuasive explanation of the connection between the Army records of the relevant events of 1973 and his back condition in recent years. By contrast, Mr Sherlock was critical of Dr Tarrant’s approach to the examination of Mr Novak and of the quality of his reports, and claimed that Dr Tarrant’s history of Mr Novak’s condition was incomplete, and that he was prejudiced against compensation claimants.
Respondent
42. Mr Modder, for the Respondent, submitted that any injuries arising out of Mr Novak’s motorcycle accident on 14 October 1973, which occurred while he was off duty, are not compensable under the Act. Moreover, any subsequent back strains during service (which are not admitted) were the sequelae of the motorcycle accident and were not new occurrences in themselves.
43. Mr Modder said the Respondent submits that Mr Novak deliberately misled the doctors involved in this claim as he did in his two workers compensation claims, believing that full disclosure would compromise those claims. Mr Novak grossly exaggerated the details relating to the motorcycle accident in October 1973 and “his evidence is utterly self-serving, unreliable and cannot be given any significant weight by the Tribunal”.
44. Mr Modder contended that the October 1973 back injury “was clearly a soft tissue injury which resolved within eight weeks”.. There is no contemporaneous medical record of a lifting injury in 1974 and the Respondent suggests that the reference to a lifting injury in 1974 in Mr Novak’s discharge questionnaire was a mistake and should, in fact, be a reference to the incidents at work in November 1973 which Mr Novak said were related to the motorcycle accident and involved lifting. After Mr Novak’s discharge from the Army, there is no record of any back problems until a mention in Dr Chung’s records on 28 April 1981 indicating backache. Dr Isaacs, in a referral letter to Dr Ghabrial dated 10 November 1989 (R11 p15), states that Mr Novak first injured his back in 1982 and then suffered further aggravations in 1984 and January 1989.
45. With regard to the expert witnesses, Mr Modder noted that while Dr Tarrant had had the opportunity to review all the relevant material, Dr Ghabrial, when he examined Mr Novak and prepared his report, only had limited material before him – in particular Mr Novak’s selective history which excluded reference to his work-related injuries in 1982, 1984 and 1989, and 1996. Mr Modder noted that in his letter to Dr Isaacs of 20 March 1990 (R11 p23), Dr Ghabrial accepted Mr Novak’s history of back pain since 1982, whereas in his report dated 16 August 2002 (A1) he accepted that Mr Novak’s service injuries in 1973 and 1976 (sic) were responsible for the degenerative changes that required surgery in 1990. When preparing his 2002 report, Dr Ghabrial failed to request access to his earlier hospital file on Mr Novak dating from 1990.
46. Mr Modder noted that Mr Novak agreed in cross-examination that he did not disclose information to the numerous doctors he had seen over the years if he thought disclosure would compromise his case. Mr Modder took him through specific examples which Mr Novak acknowledged.
47. Dr Tarrant considered that Mr Novak’s symptoms in 1990 could be explained by his 1982 injury. If Mr Novak had suffered a tear to the annulus at L5/S1 in 1973, he would not have been able to walk and would have required hospitalisation. Both Dr Tarrant and Dr Ghabrial agreed that any 1974 injury would have been of little or no clinical significance if there was no mention of it in the service records for that year. Dr Tarrant believed the level of Mr Novak’s spinal degeneration was within normal variation. He considered he could work in a light duties position for 20 hours per week.
48. With regard to whether Mr Novak is qualified for payment of disability pension at the Special Rate, Mr Modder contended that Mr Novak does not meet the requirement that his degree of incapacity must be at least 70% pursuant to s 24(1)(a). Moreover, he is not totally and permanently incapacitated from service-caused conditions (s 24(1)(b)). Dr Tarrant considered that Mr Novak could undertake light duty work for 20 hours per week. Finally, in relation to s 24(1)(c), a number of the conditions from which Mr Novak suffers – chronic left and right rotator cuff tendonitis, bilateral arthritis of the knees and industrial deafness – are unrelated to his service. Thus, Mr Novak is not qualified for payment of disability pension at the Special Rate.
Consideration of the Law and Findings
49. There are two issues to be determined by the Tribunal: first, whether Mr Novak suffers from a defence-caused injury or disease in relation to his back as a result of which he is incapacitated and in respect of which the Commonwealth is liable to pay pension by way of compensation pursuant to s 70(1) of the Act; and, second, whether, pursuant to s 73 and s 24, Mr Novak is qualified for payment of disability pension at the Special Rate. The standard of proof to be applied in deciding relevant matters is that of “reasonable satisfaction” (s 120(4)).
50. With regard to the first issue, the Tribunal notes that in accordance with s 5D(2), a reference to the incapacity of a person from a defence-caused injury or disease “is a reference to the effects of that injury or disease and not a reference to the injury or disease itself”.
51. Before proceeding further, it is appropriate that the Tribunal should make appropriate findings in relation to the first issue. There seems to be broad agreement among the medical experts that Mr Novak suffers from back pain as a result of fibrotic change at L5/S1 and a disc protrusion at L4/5. Dr Ghabrial said in evidence that lumbosacral radiculopathy is a loose description for Mr Novak’s back condition. Both Dr Ghabrial and Dr Tarrant agree that degenerative changes are evident at both levels.
52. Having identified the relevant condition, it is then necessary to determine whether the condition is defence-caused. Mr Novak states that he was involved in a motorcycle accident in Newcastle while he was off duty. His Army Attendance and Treatment Card (R16 p3) records that the accident occurred on 14 October 1973. Mr Novak stated (A4) that as a result of the accident
I felt pain in my back and sustained soft tissue injury … X rays were taken. Treatment was rest and heat pack. Pain killers were given. Long term treatment back rubs periodically in Regimental Medical Unit.
53. His Treatment Card records that he saw an Army Medical Officer, Dr N Rothfield, on 15 and 16 October 1973 complaining of “right forearm and hand bruised and also forehead … Skull, Rt shoulder & Rt hand X-rays all NAD” [No Appreciable Disease]. Dr Rothfield declared him unfit until 18 October 1973 due to motorcycle injuries. On 22 October 1973, Mr Novak again consulted an Army Medical Officer who declared him fit for duty. On 25 October 1973, he was seen by the same doctor who recorded that Mr Novak complains of “Backache (low) after lifting (not very heavy lifting apparently) & insomnia”. On examination, “Back movts almost normal. Slight tenderness above iliac crests posteriorly”. He was given pain killers.
54. The next entry is on 14 November 1973 recording that Mr Novak complained of “No real improvement in low back pain”.. On examination, spinal flexions slightly restricted by pain. Sl tender in midline at L/S junction”. Mr Novak was instructed to resume spinal extension exercises, told not to engage in vigorous “PT” sessions for two weeks and given further pain killers. He was reviewed on 29 November 1973 when the doctor records that Mr Novak “states not much improvement”. On examination “Spinal flexions Sl improved – more brisque”. He was instructed to undertake an “increased number of daily exercises”, told not to engage in vigorous PT sessions for another two weeks and given further pain killers.
55. On 10 December 1973, Mr Novak attended for treatment of an insect bite “on left side of neck while riding motorcycle” and was given medication for this. There is no further reference to Mr Novak’s back on his Treatment Card. The only other reference to Mr Novak’s back in his Army records is in his Discharge History Questionnaire completed on 11 December 1975 (R7 p52). In the comments section of the form there is the following entry: “Back injury from lifting during service 1974”.
56. In evidence, Mr Novak said he could not recall the lifting incident about which he complained on 25 October 1973 (Transcript 6 March 2003 p13), and confirmed that the entries on his Treatment Card for 25 October 1973, 14 September 1973 and 29 November 1973 all related to his motorcycle accident (Transcript 6 March 2003 p14).
57. On the basis of the above evidence, the Tribunal finds that the injuries recorded on Mr Novak’s Army Treatment Record Card during the period October-November 1973 are not defence-caused.
58. With regard to the 1974 lifting injury, Mr Novak stated (A4):
I was working in the Royal Australian Engineers Store Supply building issuing supplies.. I lifted a truck tarpaulin and felt pain in my back. I went to the Medical Centre and received treatment of a linament [sic] back rub. This happened often and should have been documented.
In evidence, Mr Novak said that he felt
huge excruciating pain in my back and down my legs and that I was just immobile, my mobility was stopped and pain was unbearable and I you know was off duty after that. (Transcript 6 March 2003 p15)
He reported to the Regimental Aid Post where he was given paracetamol and put on light administrative duties for a while. He said he saw Army doctors on a number of occasions in 1974 and said his back was troubling him, even though this is not recorded in the Army Medical Attendance and Treatment records.
59. The Tribunal finds it surprising, given Mr Novak’s description of the 1974 incident, that there is no record of this on his Army Attendance and Treatment Card. Mr Modder, in his written submissions, suggested that the Discharge History Questionnaire could have mistakenly recorded a back injury from lifting in 1974 when, in fact, this could have been that recorded on Mr Novak’s Treatment Card on 25 October 1973, of which he told the Tribunal he had no recollection.
60. In considering Mr Novak’s account, the Tribunal had regard to his credibility in relation to compensation claims. Mr Novak acknowledged on a number of occasions that he has not revealed his full history where he has believed it would be prejudicial to his case. The Tribunal notes that in relation to his 1989 compensation claim he did not reveal he had injured his back during his Army service in 1973/1974. In relation to his 1996 compensation claim, he did not reveal his 1973/1974 injuries, nor his 1982, 1984, or 1989 injuries. Mr Novak acknowledged this in evidence (Transcript 6 March 2003 p23). In relation to the current matter, for example, when Mr Novak was examined by Dr Ghabrial on 14 August 2002, he did not reveal to Dr Ghabrial that he had been injured while working for Tubemakers in 1982, 1984 and 1989 for which he received a compensation settlement in 1992, nor did he reveal his injury in 1996 for which he received a compensation settlement in October 1998 (Transcript 6 March 2003 pp38-39). The Tribunal finds that Mr Novak’s evidence is prone to be selective and self-serving and that he excludes material he believes to be prejudicial to his case.
61. In the Tribunal’s view, it would be unsafe to base a finding on Mr Novak’s evidence in relation to the alleged 1974 incident without corroborating evidence. There is no corroborating evidence. The reference in his Discharge History Questionnaire could, as Mr Modder suggested, have been a reference to the lifting incident recorded on 25 October 1973. Given the generally thorough Army medical record-keeping suggested by the Army Attendance and Treatment Card and other file documentation, the Tribunal finds it surprising that there was no record of any incident in 1974 given Mr Novak’s description of the “huge excruciating pain” and immobilisation. If the incident occurred in 1974, and he received treatment for a month or six weeks (Transcript 6 March 2003 p15), it would be a significant omission for the relevant medical officer not to have maintained a record.
62. Thus, the Tribunal is not reasonably satisfied that a lifting incident as described by Mr Novak occurred in 1974. Since the incident on 25 October 1973 related to the motorcycle accident – as Mr Novak acknowledged – the Tribunal is not, therefore, satisfied that Mr Novak suffered a defence-caused injury to his back during his Army service in 1973 or 1974.
63. The outstanding matter in relation to Mr Novak’s back is whether he suffered a defence-caused injury to his back as a result of altered gait arising from his left ankle injury. Mr Sherlock submitted that Mr Novak’s left ankle condition contributed to his back problems. Mr Sherlock relied on a finding by Dr Mark Burns, Occupational Therapist, in his report dated 18 July 2001 (N2001/1749 T11) that Mr Novak
was noted to walk with an antalgic gait favouring his left leg. He waked with a walking stick in his right hand.
However, Dr Burns attributes part of Mr Novak’s mobility problems to his knees, which are not an accepted condition.
64. Mr Sherlock also referred to Dr Ghabrial’s evidence that it is not uncommon for lower limb injuries to result in lower back pain as a result of additional strain on the spine (Transcript 6 March 2003 pp50-51). Mr Modder suggested this was mere speculation by Dr Ghabrial, who did not examine Mr Novak’s ankles. By contrast, Dr Tarrant, who did make such an examination, noted no calf wasting, and made no connection between Mr Novak’s ankle condition and his back. Indeed, Dr Tarrant attributed Mr Novak’s back pain to chronic mechanical changes and degenerative disease.
65. On the basis of the above evidence, the Tribunal is not reasonably satisfied that Mr Novak’s left ankle condition contributed to his back condition. The Tribunal notes that Mr Novak claims to have suffered a number of back injuries in the period since his ankle injury in September 1974 – namely in 1982, 1984, 1989, 1996 and most recently on 8 September 2002 when he had a fall in his backyard. The Commonwealth is not liable to pay compensation by way of pension to Mr Novak in respect of any back injury or disease pursuant to s 70(1) of the Act.
66. With regard to the second issue, whether Mr Novak is qualified for payment of the disability pension at the Special Rate, the Tribunal notes that the VRB affirmed the decision of the Repatriation Commission that assessed Mr Novak’s pension at 50% of the General Rate. The evidence at the hearing before the Tribunal and the submissions focused almost exclusively on Mr Novak’s back condition. It was not suggested that the assessment of Mr Novak’s left ankle condition was incorrect.
67. Indeed, in a more recent report, dated 18 July 2001 (N2001/1749 P11), Dr Mark Burns, Occupational Physician, also assessed Mr Novak’s incapacity due to his left ankle condition at 50%. Relying on this, the Tribunal therefore finds that the original assessment of Mr Novak’s left ankle condition, as affirmed by the VRB, was correct, and that Mr Novak does not satisfy s 24(1)(a)(i) and is not, therefore, qualified for payment of disability pension at the Special Rate.
68. In conclusion, the Tribunal affirms the decisions under review.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 6 March and 16 April 2003
Date of Decision 17 June 2003
Advocate for the Applicant Mr R Sherlock
Advocate for the Respondent Mr S Modder
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