Oxley and Military Rehabilitation and Compensation Commission

[2006] AATA 351

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 351

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/153

VETERANS’ AFFAIRS DIVISION		)
Re		DAVID OXLEY

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date12 April 2006

PlaceBrisbane

Decision The decision under review is affirmed.

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

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – applicant claims various injuries caused by service – depressive disorder triggered by back pain from injury in the RAAF – conflicting medical accounts – applicants back condition not related to service

Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

12 April 2006 Senior Member B J McCabe         

introduction

1.      Mr David Oxley is the applicant in these proceedings. He served in the RAAF between 19 June 1991 and 31 May 1994. (He had earlier periods of service in the British and Australian armies.) The applicant now suffers from a major depressive disorder. He says the condition gives rise to a right to compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRCA) because the depressive disorder was brought on by the pain associated with a back condition. He says the back condition developed as a result of his service in the RAAF. The Military Rehabilitation and Compensation Commission (the MRCC) denied the claim. Mr Oxley has now asked the Tribunal to reconsider the decision.

the material before the tribunal

2. The respondent provided the Tribunal with the documents required under s 37 of the Administrative Appeals Tribunal Act1975. The following documents were also tendered in evidence:

·Report of Dr Ding dated 24 November 2005 (exhibit 2);

·Report of Dr Gibberd dated 8 November 2005 (exhibit 3);

·Statement of the applicant dated 21 July 2003 together with annexures from a previous statement (exhibit 4);

·Document headed “Submission to the AAT” received by the Tribunal on 28 July 2005 (exhibit 5);

·Report from Dr Likely dated 13 March 2006 (exhibit 6);

·Medical examination record from Department of Defence (exhibit 7);

·Extract from outpatient clinical record (exhibit 8).

3.      Mr Oxley gave evidence in person. Drs Likely, Gibberd and Ding also gave evidence by telephone. Attempts were also made to reach Dr Watson, who prepared a report on behalf of the applicant. Dr Watson was on leave, so he could not be cross-examined. Although he subsequently contacted the Tribunal in response to the messages that had been left for him by the applicant, he was too late to give evidence. I accepted his report into evidence, although the respondent said I should consider what weight ought to be given the report in circumstances where its author had not been made available for cross-examination.

4.      Mr Oxley was represented by Mrs Rankin, a lay advocate. Mrs Rankin is a member of the Vietnam Veterans’ Association. Mr Clark of counsel represented the respondent.

the factual background

5.      The applicant was born on 6 April 1954. He served in the British Army between 1975 and 1980 before migrating to Australia. He joined the Australian Army in 1985. He left the Army in 1988. He worked in civilian roles for several years before joining the RAAF on 19 June 1991. He worked as a cook although he applied to join the RAAF security police towards the end of his service. He was discharged from the RAAF at his own request on 31 May 1994.

6.      Mr Oxley suffered an injury to his back in 1985 while playing football. He made a claim for compensation dated 20 August 1985. He sustained a musculo-ligamentous strain of his mid and lower back. He underwent physiotherapy and visited a chiropractor. In his evidence before the Tribunal, he insisted the football injury sustained during his Army service resolved. I note the discharge questionnaire did not identify back pain as a problem and the records of the Medical Board (exhibit one at p 19) suggest the applicant’s back was normal in 1988.

7.      The applicant told the Tribunal he did not recall experiencing chronic back pain before joining the RAAF. He did not indicate there was any problem with his back when enlisting in 1991 but his service medical records were produced to the RAAF. The references to a back injury apparently prompted a referral to an orthopaedic specialist for assessment.

8.      The specialist’s remarks are found at exhibit one at p 118. The specialist reported evidence of early degenerative change. The applicant says he was not aware of the specialist’s remarks; he understood he was given a clean bill of health and allowed to enlist. In fact, the specialist opined the applicant’s back problems might be a problem but thought the risk was not so great that he should be prevented from enlisting.

9.      Mr Oxley worked as a cook but he became increasingly dissatisfied with his military career. He experienced interpersonal conflict with some of his supervisors. He decided to seek a transfer to the security police. He underwent a combat survival test in Townsville during this period. As part of the test, he was required to run up Castle Hill. The applicant says he hurt his back – a fresh injury – during this exercise. He says his back never really recovered, and he was in constant pain thereafter. He obtained treatment but none of the doctors he consulted ever took an MRI scan.

10.     The applicant lodged a claim for compensation in respect of a back injury in 1995. He was referred to Dr Boys, an orthopaedic surgeon, for an opinion. Dr Boys obtained x-rays but no MRI. He concluded the applicant was suffering from multi-level age-related degeneration. Dr Boys says the underlying condition was not attributable to the applicant’s employment, although he agreed the exertion on the combat survival course might have temporarily aggravated the condition. The claim for compensation was subsequently rejected.

11.     After leaving the RAAF, the applicant took time out of the workforce. He was a sole parent to his son. He accepted employment as a youth worker in 1999 and later became a carer. He was injured while doing that work in July 2003 and claimed workers’ compensation. He was subsequently dismissed and has not worked since.

the medical evidence

12.     Mr Oxley said he experienced a good deal of stress since leaving the RAAF, although Mr Clark invited me to draw the inference the stress was connected with his injury in 2003, the subsequent dismissal and workers’ compensation claim. In any event, the applicant saw Dr Likely, a psychiatrist, for the first time on 12 September 2003. Dr Likely diagnosed the applicant as suffering from major depression. In his report of 13 October 2003, Dr Likely suggested the applicant had been suffering significant symptoms of depression since leaving the RAAF. Dr Likely says the applicant’s major depressive disorder was attributable to the chronic back pain he experienced as a result of the injury sustained in the RAAF.

13.     Dr Likely acknowledged he made his diagnosis without seeing the applicant’s service medical records. He agreed it was “unfortunate” he did not have access to that material. He also said he understood the applicant left the RAAF as a result of his back-pain.

14.     Dr Ding prepared a report dated 24 November 2005 and gave evidence at the request of the respondent. Dr Ding is a psychiatrist. He had access to all of the applicant’s service medical records, and to Dr Likely’s report. He also met Mr Oxley. Dr Ding concluded the applicant suffers from a major depressive disorder which is currently in remission. He says the condition had its onset in 2003. While he acknowledged there were some symptoms apparent up to ten years ago, Dr Ding said they would not justify a diagnosis. He went on to say the pain associated with the injury on the combat survival course and apprehension regarding the future might have rendered Mr Oxley more vulnerable to developing the condition. But Dr Ding said “the primary factors responsible for his Major Depressive Disorder relate to his back injury sustained in 2003” (Exhibit 2 at p 10).

15.     It is often difficult to evaluate the conflicting opinions of two expert witnesses. Dr Likely has the advantage of seeing the patient regularly. Dr Ding has the advantage of independence: treating doctors can become close to their patients, which can affect their impartiality. Dr Ding also had access to more information about the applicant’s medical history than was available to Dr Likely. For those reasons, I would tend to prefer the evidence of Dr Ding. But before reaching a concluded view on that point, it is necessary to consider the evidence of the other specialists who gave evidence in relation to the applicant’s back condition.

16.     Dr Boys prepared a report in 1995 in connection with the applicant’s claim for compensation for his back condition. Dr Boys is an orthopaedic surgeon. He diagnosed multi-level age related degenerative changes to the applicant’s lumbar spine. He accepted there was some temporary aggravation of the condition as a result of service-related incidents.

17.     The “T” documents include a number of reports from Dr Watson, who saw the applicant on referral from the applicant’s general practitioner, Dr Patane. Dr Watson is a consultant in rehabilitation medicine. He is not an orthopaedic surgeon. His report (exhibit one at p 63) referred to “lumbosciatic pain” and a “progressive musculoskeletal pain problem”. He also referred to a “natural history of…underlying degenerative change.” In his second report (exhibit one at p 65) he doubted whether the degenerative changes in the applicant’s spine were age-related. Dr Watson suggested it was uncommon to see widespread degenerative change in the absence of evidence of a specific trauma.

18.     The applicant also underwent an MRI during this period. It showed a central disc bulge and mild degenerative changes to the apophyseal joints throughout the lumbar spine. (The applicant said this was important: he apparently believes the bulging disc is a major source of the pain he experiences, and that an MRI should have been conducted before.)

19.     Dr Gibberd prepared a report and gave evidence at the request of the respondent. He had prepared an earlier report in connection with Mr Oxley’s Workcover claim. Dr Gibberd was an impressive witness. He has over 30 years experience as an orthopaedic surgeon. He was also familiar with Castle Hill, where the applicant says he hurt his back during the combat survival course. Dr Gibberd had access to all of the background documents and he gave clear explanations for his findings.

20.     Dr Gibberd says the applicant suffers from multiple disc degenerative disease – essentially the same diagnosis as Dr Boys made in 1995. Dr Gibberd says the bulging disc is related to the degeneration, not the running. He added the bulging disc was not necessarily clinically significant in any case. He said the running might have caused some temporary aggravation of the underlying condition but the aggravation should have lasted three to six months at the most. (He suggested that sort of aggravation usually settled down within a fortnight.) Once the aggravation subsided, the condition would have settled back into its natural course.

21.     Dr Gibberd did not appear to see anything unusual in a person of the applicant’s age suffering from a degenerative condition. He did not think it was explained by trauma, in contrast to Dr Watson. Dr Gibberd certainly did not attach any significance to the bulging disc. After carefully reviewing the evidence, I accept Dr Gibberd’s view. He is an independent expert with extensive experience and qualifications in the relevant discipline. He has had access to all of the material. He has actually climbed Castle Hill. His story is also consistent with what I take to be the facts: the applicant was starting to experience some back symptoms during his service in the RAAF which were temporarily aggravated by the combat survival course. He continued to experience some back symptoms thereafter until his condition was seriously aggravated in 2003. His conditions prior to 2003 are readily explicable with reference to his underlying degenerative condition.

application of the law

22.     In order to succeed in his claim for compensation under the SRCA, the applicant must establish his injury or disease is work-related. The applicant says his depressive disorder arose out of his work because it was attributable to back pain associated with a work-related injury.

23.     It may be that the pain associated with the applicant’s ongoing back symptoms has contributed to the development of his depressive disorder. But those back symptoms are not attributable to his employment (apart from the pain attributable to the temporary aggravation arising out of the combat survival course, which has already been the subject of a compensation claim). It follows that he cannot link his depressive condition to his service with the RAAF.

conclusion

24.     The applicant was agitated throughout the course of the hearing. He has a strong sense of entitlement. He believes passionately that the Commonwealth is responsible for his current condition. He took exception to many of the questions he was asked and gave evidence in a very combative style.

25.     I pointed out to the applicant at the conclusion of the hearing that the Tribunal was independent of the agencies he has been dealing with in relation to his various claims. I assured him I would consider the material he provided. I have done so. The material does not support the claims he has made. In those circumstances, the decision under review must be affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         Adam Ryan
  Associate      Adam Ryan

Dates of Hearing  23 & 24 March 2006
Date of Decision  12 April 2006
The applicant was represented by Mrs Rankin, a lay advocate.
The respondent was represented by Mr Clark of Counsel.