Peet and Military Rehabilitation and Compensation Commission

[2005] AATA 1202

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1202

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/122

VETERANS’ APPEALS  DIVISION		)
Re		AARON JAY PEET

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal S PENGLIS, SENIOR MEMBER
DR P STAER , MEMBER

Date6 DECEMBER 2005

PlacePerth

Decision The Tribunal affirms the decision under review.

...........(sgd S Penglis)..............

Senior Member

CATCHWORDS

Veterans – compensation – fall held not to have caused injury complained of – disqualification for wilful and false representation – representation held to be wilful and knowingly false – Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7(7) and 14(1).

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7(7), and 14(1)

Comcare v Porter (1996) 70 FCR 139

Illiads and Comcare (1996) AATA 10859

Duffy and Comcare (1996) AATA 11000

Wilson and Comcare (1996) AATA 11317

REASONS FOR DECISION

6 DECEMBER 2005 S PENGLIS, SENIOR MEMBER
DR P STAER , MEMBER  

1.      The applicant enlisted in the Royal Australian Army on 10 June 2002.  He was discharged just over a month later on 25 July 2002.  His discharge was pursuant to the provisions of AMR 176 (1) (P) – “That the soldier gave false information to a person to whom information was required to be given in connection with his enlistment”.

2.      On 5 July 2002 the applicant fell whilst alighting from his bunk.  The applicant contends that the fall injured his lower back causing him to sustain severe and continuous pain and restrictions in movement.

3.      He submitted a claim to the respondent for compensation pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). The respondent rejected the claim.

4.      It is that decision that the Tribunal is required to review.

The Incident

5.      The applicant gave evidence that, when enlisted, he was transported to One Recruit Training Battalion at Kapooka in New South Wales.  He was allocated the top bunk in a room where there were two double bunks.  There were no ladders or steps to assist him in getting up to or down from the top bunk.  To avoid stepping on the lower bunk, the method employed by the applicant in getting down from his bunk was by stepping onto a nearby windowsill, then onto a plastic chair positioned under the windowsill and then down onto the floor. 

6.      The window did not close properly.  Night moisture would form on the windowsill making it slippery.

7.      Each morning at Reveille the soldiers had to wake, get out of bed with their blankets and sheets around them and be in the hallway as quickly as possible.

8.      On the morning of 5 July 2002, at the sound of Reveille, the applicant woke and stepped onto the window ledge in the course of alighting from his bunk.  The applicant slipped and fell backwards.  His lower back landed on the chair.  He then hit the floor with his upper back.  Two of the recruits who slept in the same room helped him from the floor, grabbed his sheets and blankets and helped him into the hallway.  After roll call his roommates helped the applicant dress and the applicant then reported to the Duty Non-Commissioned Officer (Duty NCO).  The applicant was told to finish his morning duties, have breakfast and return if he was still feeling unwell.

9.      The applicant said that on returning to his room the pain increased and he went back to the Duty NCO.  The applicant was transferred by ambulance to the Camp Hospital where he was examined by the doctor.  He was then taken into the nearby town of Wagga-Wagga to have an x-ray.  He was told the x-ray showed nothing untoward.  He was kept in the Base hospital over the weekend and given Panadol for pain relief.  He said “I requested a stronger pain relief but was told that all I could have was Panadol even though I was in immense pain.  I had had lower back pain in the past but this was completely different to those.  The pain was in a different part of my back and was much more intense and painful”.

10.     On the Monday (8 July 2002) the applicant saw a Captain Fardell and was sent to Digger James Platoon for rehabilitation.  There he was given restrictions which included no marching, no drill and no load carrying.  He was transported to and from meals.

11.     The next time the applicant saw Captain Fardell he said “I informed her that the pain in my upper back was similar to the sort of pain I had had before and all I needed was mobilization like I had previously from my family GP.  I also told her that I had never had pain in my lower back before like I had now.”

12.     The applicant was sent to a physiotherapist who mobilized his upper back.  The applicant said that he had immediate pain relief to his upper back but his lower back was still “giving me intense pain”.  He was given exercises to perform and told to return in two days.  When he did that he reported to the physiotherapist that the pain in his lower back was increasing.  The applicant said there was no attempt to “do any physio” to his lower back but the applicant was advised “to keep going with the exercises”.

13.     The applicant said that he was then informed by Captain Fardell that he was being discharged as medically unfit to continue training.

14.     Mr Dube, counsel for the respondent, cross examined the applicant at length with respect to the detail of the incident, including the configuration of the room.  In his closing submissions Mr Dube submitted that it was open to the Tribunal to conclude that the incident did not occur in the manner stated by the applicant.

15.     In this regard the Tribunal notes that the applicant’s evidence was corroborated to a substantial degree by a statement signed by one of the recruits who witnessed the incident and assisted the applicant.  Mr Anthony Challita wrote:

“I recall the incident.  I remember getting up for reveille; your were sleeping on the top bunk.  We were called to the hall way.  You got up, placed your leg on the window ledge to get down off the top-bunk and then you slipped and fell on your back, first hitting a chair then falling awkwardly onto the floor.

You used the ledge to get down because you did not want to step on the recruit sleeping in the bunk below you.  I know this because we discussed it the night prior to your injury.”

That statement was admitted without objection.  More to the point, counsel for the respondent made no complaint of the fact that Mr Challita had not been made available for cross-examination.

16.     Whilst the Tribunal accepts that there are aspects of the applicant’s evidence which are puzzling, and that, for reasons which will be given, the Tribunal has found the applicant’s evidence to be unreliable in various respects, having regard to the evidence before the Tribunal as to the incident itself, particularly the unchallenged evidence of Mr Challita and the absence of any evidence inconsistent with the applicant’s account, the Tribunal finds that the incident on 5 July 2002 occurred as described by the applicant.

Issues for Determination

17.     The issues which the Tribunal must determine are as follows:

(a)Was the applicant’s lower back condition caused or materially contributed to by his military service within the meaning of s 14(1) of the Act (when read with the definitions of “injury” and “disease” in s 4 of the Act)?

(b)If so, is the respondent entitled to avoid liability for that condition pursuant to s 7 (7) of the Act by reason of what the respondent contends to have been wilful and false representations by the applicant?

Applicant’s prior medical history

18     In order to determine the issues arising in this matter, it is necessary to have regard to the applicant’s medical history prior to the incident.

19.     The first significant event was on 23 April 1992 when, at the age of 16 years the applicant had an accident while riding his moped – a 50cc motorcycle.  In short, the applicant’s motorcycle collided with a motor vehicle.  He was taken to Royal Perth Hospital where he was admitted because “I was suffering soft tissue injuries to my neck and back”.

20.     Evidence in the form of clinical notes and hospital records establish that the applicant had suffered a “lumbar spine injury”.  The applicant was complaining of “tender cervical spine/lumbar spine, numbness/tingling”.  On 3 May 1992, the clinical notes of Dr La Valette – the applicant’s general practitioner – revealed the following entry:

“M/Cycle accident – seen and admitted to RPH on 23 April 1992 (discharged on 30 April 1992). Neck and lumbar spine - soft tissue injury”.

21.     The evidence establishes that the applicant was hospitalised on 23 April 1992 and discharged 7 days later on 30 April 1992.

22.     The next incident was a year later when, on 24 July 1993, the applicant “rolled a car” and was taken by ambulance to Sir Charles Gairdner Hospital in Perth.  The applicant’s evidence was that he “was suffering from pain in the cervical and lumbar spine.”  There were only soft tissue injuries to the cervical spine and lower thoracic spine.  X-rays were completed on the thoracic-lumbar spine and these showed no abnormality.”  He said “he quickly got over the minor injuries and returned to work for (his uncle)”. 

23.     The contemporaneous medical records record the following:

·     The accident and emergency notes of Sir Charles Gairdner Hospital reveal the following entry:  “Previous MVA – lower spinal injury .NOS.Chronic Neck Pain … now pain concentrated neck, occiput and lumbar spine … thoracio-lumbar spine – tender throughout”.

·     The Patient Record Card of the Sir Charles Gairdner Hospital records the following entry:-   “MBA 12/12 Ago – chronic lower back pain since”.

·     the Clinical Notes of Sir Charles Gairdner Hospital record that the applicant had been admitted suffering from “pain in cervical and lumbar spine … soft tissue injuries to the C-spine and lower T-spine” and further record that the applicant had been involved in a motor vehicle roll over on the Saturday and had sustained “neck and lower back injury”.

24.     1994 was not incident free for the applicant either.  On 15 December of that year he was involved in a three-car collision.  He was stationery behind another car when his vehicle was hit from behind pushing it into the rear of the vehicle in front of him.  The applicant said that he saw  “Dr La Valette and he did not feel my injuries were bad enough to warrant any x-rays.  I was prescribed some painkillers and went back to work.”

25.     The only contemporaneous medical document in respect to this incident is the Clinical Notes of Dr La Valette dated 19 December 1994 which record the following entry: “MVA 15/12 1994 … pain in neck and lower back”.  However, also relevant to this incident were the Clinical Notes of Dr La Valette dated 10 February 1995, which record the entry “severe back and neck pain” and more particularly, the Clinical Notes dated 16 March 1995 which record that Dr La Valette had written to the State Government Insurance Commission advising that the applicant had presented following a third motor vehicle accident complaining of “pain in his neck, upper and lower back.  Examination showed that he was stiff and tender in his neck and back with some limitation of movement in all directions.  He was seen again on 16.2.95.  He was still complaining of severe back and neck pain and was also complaining of dizzy spells and headaches”.

26.     The applicant thereafter continued to see Dr La Valette on a regular basis.  Dr La Valetta’s clinical notes on the following dates reveal the following entries:

·     5 May 1995:                   “Lower back pain”

·     August 1995:                  “Neck and back mobilised”

·     November 1995:            “Neck and back pain”

·     11 March 1996:              “Backache – mobilised”

·May 1996:  “Neck and back pain… neck, upper and lower  back mobilised”

·     10 June 1996:                “Neck Upper and Lower Back – Mobilised”

·     3 December 1996:        “Upper and lower back pain”

·     18 July 1997:                  “Back ache”

·     12 August 1997:            “Back ache”  

·5 November 1997:      “Started a new job - a night club…Neck and lower back mobilised”

·      4 December 1997:       “Back Ache”

·      5 January 1998:           “Back pain again … works at a night club”

·      6 February 1998:          “Back pain again”

·28 April 1998                “Fell over last night throwing someone out of the  Club… lower back”

·      12 March 1999:            “Lower Back pain”

·24 May 1999:                “Lower back pain – stiff and tender lower back and (indecipherable) S/1 areas.

·26 August 1999:           “Neck – upper and lower back pain – mobilised all areas those gently.”

·     15 February 2000:         “Neck ache and back ache”

·     8 June 2001:                  “Neck and back ache”

·     11 December 2001       “Upper back ache”. 

27.      Indeed, Dr La Valette’s Clinical Notes show the applicant complaining of back pain on a regular basis from as early as 1989.

The Applicant’s “Entry Medical Examination Record” 

28. On 12 March 2002 the applicant attended upon Dr T J Middleton for the purpose of undertaking a medical examination as part of his application to join the Army. Under the general question “Have you ever had or are you suffering from”, numerous numbered questions follow for which an answer of “Yes”, “No”, or “Not sure” could be given by ticking the relevant box. Item 143 was “Back Injury”. The applicant ticked the “No” box. In short, the respondent contends that, given the applicant’s previous medical history, that answer was “a wilful and false representation” within the meaning of s 7 (7) of the Act. The respondent further submitted that this was not the only “wilful and false representation” given by the applicant in this document. In this regard the respondent submitted that the answers to the following questions were also “wilful and false representations”, namely:

·     (Have you ever had or are you suffering from) “Severe or recurrent headaches or Migraines” to which the applicant ticked “No”.

·     “Have you ever had an accident for which you have applied or intend to apply for … compensation of any type” to which the applicant ticked “No”.

·     “Has an accident or illness kept you off school or work for more than one week” to which the applicant ticked “No”.

·     (Have you ever had or are you suffering from) “Knee injury or pain” to which the applicant ticked “No”.

·     (Have you ever had or are you suffering from) “Neck Injury or pain” to which the applicant ticked “No”.

29.     In addition, the respondent submitted that the applicant’s account to Dr Middleton of his accidents in 1993 and 1994 were also “wilful and false representations”.  As to the 1993 motorcycle accident, Dr Middleton wrote “Motorcycle accident age 16 years. No injury. Sent home.” With respect to the 1994 motor vehicle accident, Dr Middleton recorded “MVA Age 18. No serious injury – examined and not admitted”.

Documentary evidence with respect to the Incident

30.     The applicant’s Service Medical Records for 5 July 2002 record the following entry: “climbing down from double bunk this am, slipped and hit back on chair.  Able to get up unaided but … severe pain … poor fitness and overweight was planning DOR but has withdrawn this NKDA … essential tenderness L1/S1:  no thoracal localised tenderness. Full flexion with pain EOR.Ext ltd ++ pain Lateral flexion ok”.

31.     The applicant’s Service Medical Records for 8 July 2002 record “there were no objective signs in the (indecipherable) region and an x-ray of the lumbosacral spine is normal”.

32.     On that same day the applicant lodged a claim for compensation in respect of “a lower back” injury said to have been caused by the incident. In respect of the question “Have you ever suffered a similar injury in the past?” the applicant answered by marking the “No” box.

33.     The applicant’s Service Medical Records for 9 July 2002 reveal the following entry:  “MBA 10 years ago – back pain for 2-3 years afterwards … took analgesia similar to Mersyndol … manipulation of back by GP – relief.  States that he saw GP for manipulation once every 3-4/12, “every time I did my back in”, until last few years when he has only had it done once or twice … forgot to mention back injury on MB b/c it had been less troubling recently … recognises his current upper back pain as a recurrence of previous pain”.

34.     A Specialist Referral and Report also dated 9 July 2002 notes that the applicant had suffered “an aggravation of pre-existing longstanding back pain.  Pain (increased) ext. central and paravertebral tenderness from T3-S1.  Has had back manipulated in the past (frequently) with relief”.

35.     The Discharge Health Statement dated 19 July 2002 noted that the applicant claimed to be suffering from lower back pain.  Was further noted that the applicant had an “undisclosed history of chronic, recurrent back pain”.

36.     On 23 July 2002 the applicant was certified unfit for recruit training by Captain Fardell who noted that the applicant had a history of back pain following a motor bike accident approximately 10 years previously.  Captain Fardell reported that the applicant had stated that the pain lasted for 2-3 years and that he required analgesia with codeine and frequent spine manipulation.  Captain Fardell also recorded that the applicant had stated that he had forgotten to disclose this information in his initial medical board examination.

37.     As previously noted the applicant, was discharged from the Army on 25 July 2002 pursuant to AMR 176(1) (P) on the basis “that the soldier gave false information to a person from whom information was required to be given in connection with his enlistment”.

Broad-based L5/S1 Disc Protrusion

38.     On 28 August 2002, a Radiologist, Dr Chris Bertke, reported that the applicant was suffering from “broad-based L5/S1 disc protrusion.  No focal bony or soft tissue abnormality at the suspected L3/4 level”.

39.     On 30 October 2002, a Neurosurgeon, Dr Narula, provided a report.  Dr Narula reported that the applicant “has had a previous injury to his lower back at the age of 16 with a motor bike accident. There has been some manipulation carried out 2 to 3 times a year over the 5 to 6 years.  He never had severe back pain but the occasional back ache…His plain x-rays show loss of disc height at L5/S1 suggesting old pathology.  The CT scan does show the presence of central disc bulge which no doubt is the main cause of his symptoms although adjoining segments may be also involved”.

40.     Following that report, on 18 December 2002 the applicant submitted a second claim for a lower back injury, this time describing the injury as “broad L5/S1 disc protrusion”.  Again the applicant denied ever suffering a similar injury or illness in the past.

41.     The applicant supported his claim with a radiology report from Dr Walker dated 29 August 2002. The examination was a CT scan of the lumbar spine which showed “broad-based L5/S1 disc protrusion”.

Mr Philip H Hardcastle

42.     The respondent referred the applicant for assessment by Mr Hardcastle, an Orthopaedic Surgeon.

43.     Mr Hardcastle took a history from the applicant and examined him.  He also examined various documents given to him, including Dr La Valette’s Clinical Notes.  He expressed the following opinions:

·“there is radiological evidence of degenerative lumbosacral disc disease and most likely some degenerative disease at L3/4 and L4/5, which is less marked.  In my opinion, there is no doubt that this is a pre-existing condition”.

·“The degenerative change at L5/S1 is something that has more than likely developed since his teenage years… once the degeneration starts in an intervertebral disc, there is a slow but gradual progression over many years and the radiological changes outlined in the CT scan of August 2002 have been present for at least 10 years.  There is a small left-sided disc protrusion, but this cannot be related at all to his fall.  He demonstrated non-specific widespread pain following the fall, not specifically at the L5/S1 level, and there is no evidence of any leg pain that may have resulted from this left-sided disc protrusion at that stage nor has there been any subsequent evidence of such.”

·“The cause of the very small disc protrusion, which has almost certainly been asymptomatic, results from progression of the degenerate change and is, in my opinion from the evidence, unrelated to the fall.”

·“Reading the enclosed notes it seems that the alleged fall may have caused some soft tissue bruising to the thoracic or lumbar region as evidenced by the widespread tenderness following his fall, but there is no evidence of any underlying pathology or any significance and this is supported by the enclosed documentation full range of movement several days following his injury.  Any aggravation would have been temporary and the effects resolved.”

44.     Mr Hardcastle concluded that, in his opinion, the applicant’s condition was probably not caused by the fall.

45.     In cross-examination, Mr Young, on behalf of the applicant, asked Mr Hardcastle whether it was possible that the fall had caused an annular tear about the L5/S1 region.  Mr Hardcastle responded by stating that most annular tears occur as a natural progression of degeneration.  Mr Young then responded “No, most do. But it could happen?” To which Mr Hardcastle responded “Yes, it could happen”.

46.     In answer to a further question from the Tribunal, Mr Hardcastle agreed that the sort of disc protrusion from which the applicant suffered is usually caused by straining and lifting - “it is mainly flexion which is bending forward” - and that it is unusual for it to have occurred from a fall.  

Dr  Andrew N Miles

47.     Dr Miles is a Neurosurgeon who provided a report on behalf of the applicant dated 18 June 2003.  Dr Miles who (was not made available for cross-examination by the respondent) relevantly noted:

“According to Aaron after this he was then discharged from the army because of continuing pain.  He saw his general practitioner and a CT scan was done which demonstrated a predominantly central moderate sized disc bulge at L5/S1 associated with some loss of disc height.  There was no evidence of any significant nerve root compression.  In September 2002, he was referred to my colleague Dr Soni Narula.  At the time Aaron had noted that his back pain had significantly increased and he had begun to notice radiation into both thighs bilaterally.  He continued to complain of a sensation that his leg would intermittently “give way”.  Dr Narula referred him for a lumbar epidural which did not provide any relief.  He did not want to go back to see Dr Narula and has had no further treatments since.  He has seen Dr Phil Hardcastle for an insurance medical report.

Currently, Aaron feels that his lower back pain is getting significantly worse.  He continues to complain of central lower back pain radiating into both buttocks and occasionally into both thighs.  His symptoms are aggravated by any prolonged walking, standing/sitting or lifting.  Other than the lumbar epidural and occasional analgesics he has had no specific therapies since being discharged from the army.

Clinical examination reveals a significant reduction in range of motion in all directions.  The cause for this reduction in range of motion was not apparent.  Aaron did not appear to be in significant amounts of pain but just felt that his muscles were very tight and therefore restricting his range of motion.  There were no areas of tenderness to palpation.  Neurological examination was entirely normal.

Aaron’s pain sounds like mechanical back pain of discogenic origin.  It is possible that he has a posterior disc annulus tear that may account for his ongoing chronic back pain.  Alternatively it may represent facet arthropathy. I think it would be reasonable to try and evaluate this further with an MRI scan of the lumbar spine and a bone scan. …”

Dr Ken Fitch

48.     On 5 August 2003, Dr Fitch, a sports physician, provided a report.  Dr Fitch was not made available for cross-examination by the respondent.  In his report, Dr Fitch noted that immediately prior to the applicant’s enlistment in the Army, he was “extremely fit”.  Dr Fitch noted that the back condition that the applicant appears to have suffered related to his thoracic spine in the region of T4/5 and did not involve his lumbar spine.  He also noted that the applicant did not discuss his back, either the thoracic spine or the lumbar spine, with the Army physiotherapist prior to 5 July 2002.  Dr Fitch opined that the applicant suffered degenerative lumbo-sacral disc with persistent central bulging of the L5/S1 disc.  He concluded that in the absence of any prior history of lumbar symptoms this must be seen to have occurred as a consequence of the fall on 5 July 2002.

49.     However,  Dr Fitch provided a further short report dated 18 February 2005 which read:

“As I retired from clinical medicine last October, I do not intend to provide a further report on Mr Peet.

I note the additional information, some of which I recommended be obtained. It adds considerable support to the premise that pre-existing injuries to your client’s lumbar spine had been sustained and may or may not have contributed to the disc prolapse.  They are likely to have been a factor in the degenerative changes demonstrated on imaging.

However I doubt that such information will assist your client”.

50.      Accordingly, the effect of Dr Fitch’s reports is that, appraised of the detail of the applicant’s medical history prior to the incident in July 2002, Dr Fitch was not prepared to opine that the bulging of the L5/S1 disc was caused by in the fall on 5 July 2002.  Furthermore, he indicated that the material he had read added “considerable support to the premise that pre-existing injuries to (the applicant’s) lumbar spine had been sustained, that he was unable to say one way or the other as to whether they contributed to the disc prolapse, but nonetheless was able to opine that “they are likely to have been a factor in the degenerative changes demonstrated on imaging”. 

Dr Peter C Anderson

51.      Dr Anderson attended the Tribunal and gave evidence on behalf of the applicant.  He said he saw the applicant on only one occasion, namely 7 April 2005.  He wrote a report dated 18 April 2005.  In that report Dr Anderson noted that the lumbar spine is a common disability in the armed forces and recruits should be carefully examined to decide whether they a significant lumbar disability prior to enlistment.  Dr Anderson noted “This matter cannot be confirmed at this consultation”.

52.      Dr Anderson noted that the applicant had undergone a CT scan and an MRI scan “both of which show evidence of a moderately large central intervertebral disc lesion at the L5/S1 segment compatible with the clinical presentation of lower back pain as the presenting feature”.  He concluded that, in his judgement, the applicant has an unstable spine at the L5/S1 segment attributable to a large central intervertebral disc bulge at the L5/S1 segment.  Dr Anderson noted that in terms of management, the applicant had seen Mr Narula and Mr Miles, Neurosurgeons, but their “opinions” had not been sighted.  Also in the report Dr Anderson noted that he had not seen the applicant’s “Enlistment Medical Records” and, with that express caveat, expressed the opinion that the applicant “did not have a significant back condition to warrant complaining about a pre-existing back condition to the medical officers conducting his recruitment medical examination.

53.      When asked by Mr Young on behalf of the applicant whether Dr Anderson would “say that the fall that Mr Peet had at Kapooka and the injury and the contact with the back of the chair with his lower back, could that have caused the L5/S1 problem, the disc prolapse, disc bulging”, Dr Anderson responded by stating that “This story is rather unusual because it is the question of a direct blow.  Spinal injuries in terms of those presenting for surgical management by people like myself, would usually be associated with a straining type injury lifting and undertaking physical work with the spine, putting pressure on the intervertebral disc in an abnormal way, straining the ligament around the area, around the intervertebral disc can result in the softening of disc and possible extrusion of the disc”.  Dr Anderson went on to say “Now, the sudden jerking associated with this incident, as I tried to explain …. before, was suggesting that the recurrent incident of a relatively minor nature will provoke the intervertebral disc protrusion as a secondary or tertiary event in this man’s spinal history rather than the primary cause of damage to the disc.  In the first place, this may have preceded his enlistment.  But the circumstances of the story are somewhat unusual in that respect”.

54.      In cross-examination, Dr Anderson stated that he seen some scans and x-rays, but did not think he had seen the opinion of any other specialists.

55.      Dr Anderson also stated that if he had been the Medical Officer responsible for assessing the health of applicants for enlistment into the Army and a person had presented themselves having a history of accidents such as that of the applicant, he “would certainly be suspicious that there was something wrong”.   

FINDINGS

56.      The evidence before the Tribunal establishes a long history of the applicant attending medical practitioners relating to his back, including his lower back.  He was involved in three motor vehicle accidents, two of which saw him hospitalised.  Mr Hardcastle was adamant that the disc protrusion was reflective of a degenerative condition, consistent with the applicant’s medical history.  Dr Fitch wrote that the applicant’s medical history added “considerable support” to the premise that pre- existing injuries to the applicant’s lumbar spine had been sustained and were “likely to have been a factor in the degenerative changes demonstrated on imaging”.

57.       Dr Anderson gave evidence to the effect that, whilst there was likely to have been a degenerative process at work, the fall was causative in the protrusion of the L5/S1 disc.  Dr Anderson’s opinion was formed without the benefit of a review of the applicant’s medical records.

58.      Importantly, Dr Anderson agreed that the injury of which the applicant complained was not usually associated with a fall, but was usually associated with excessive straining.  Dr Anderson candidly agreed that it was not usual to see a disc protrusion such as that complained of by the applicant associated with a fall, such as that which the applicant suffered. This was consistent with Mr Hardcastle’s evidence that the sort of disc protrusion from which the applicant suffered was usually associated with flexion such as lifting or straining. There was no suggestion in any of the evidence of the applicant’s fall involving any flexion of his back.

59.      Although Mr Hardcastle agreed that it was possible that an annular tear may have been caused by the fall, it is clear from his evidence that he did not think that was probable, and in any event stated that any such tear would ordinarily heal and would not be causing any difficulties this long after the applicant’s fall.

60.      For these reasons, the Tribunal is unable to conclude on the balance of probabilities that the applicant’s lower back condition was caused or materially contributed to by his fall, and therefore is unable to find  in the applicant’s favour that his lower back condition was caused or materially contributed to by his military service.  For this reason alone, the decision under review ought to be affirmed.

61. Even if the Tribunal had been satisfied on the evidence that the applicant’s lower back condition was caused or materially contributed to by his military service, the Tribunal would have still affirmed the decision under review as the Tribunal is satisfied that the applicant had made a wilful and false representation within the meaning of s 7(7) of the Act and that therefore the respondent was entitled to avoid liability (if it had otherwise had a liability under the Act).

62.      It is clear that by ticking the “No” box with respect to item 143 “Back injury” on his “Entry Medical Examination Record”, the applicant was representing that he did not suffer from and had never suffered from “back injury”.

63. It is also clear from the various medical records relating to the applicant that his answer was false. That, however, is not sufficient to bring the matter within section 7(7) of the Act. To do that, the respondent must further establish that the representation was made without any belief in its truth: see for example, Comcare v Porter (1996) 70 FCR 139. In Wilson and Comcare (1996) AATA 11317, this Tribunal was satisfied that the applicant’s false statements about his prior history of back problems arose from carelessness or mistake rather than deliberate falsity. In Iliadis and Comcare (1996) AATA 10859 and Duffy and Comcare (1996) AATA 11000 this Tribunal held that, in view of the minor nature of the applicant’s previous back complaints, there had been no deliberate misrepresentation.

64.      At the hearing before the Tribunal, the applicant denied that he had knowingly made a false answer in respect to Item 143, by stating that he did not consider he ever had a previous back injury as, to him, an injury was something that prevented one from doing something and for which one obtained treatment.

65.      We do not accept the applicant’s evidence in this regard.  First, it is inherently unlikely that someone could honestly understand an “injury” to be qualified in the way   asserted by the applicant.

66.      Secondly, the Tribunal notes that the explanation proffered by the applicant is inconsistent with prior statements he had made on this point.  It would be recalled that his explanation to Captain Fardell in 2002 was that he had forgotten to disclose his history of back pain in his initial Medical Board Examination.  Another explanation previously given by the applicant (in his Statement of Evidence before the Tribunal, affirmed by him on oath) was as follows:

“On one questionnaire, I ticked the responses going down the sheet and only casually glanced at the questions.  This is where I ticked the wrong box in answer to whether I had any back problems in the past.  I had thought that the question was about current back problems for which I did not have on enlistment”.

67.      That explanation is itself inconsistent with the fact that the applicant ticked “Yes” to the entry just six lines above the entry for “Back injury”.  The “Yes” was ticked with respect to the words “fractured, broken or cracked bones”.  Evidence was given to the effect that the applicant had suffered a fractured clavicle at an earlier time, but not at the date of the assessment.

68.      The Tribunal therefore has no hesitation in finding that the applicant’s representation that he had never had nor was then suffering from “any back injury” to have been “a wilful and false representation that he did not suffer, or had not previously suffered, from a back injury.

69.      For the sake of completeness the Tribunal notes that counsel for the respondent submitted that there existed other factors which ought to cause the Tribunal to conclude that the applicant’s answer with respect to “back injury” was made by him knowing the same to be false.  It was also submitted on behalf of the respondent that answers given by the applicant in support of his application for compensation were also made by him knowing the same to be false.  In view of the Tribunal’s findings, it is unnecessary for the Tribunal to determine these matters, and it does not do so.

70.      For these reasons, the Tribunal therefore affirms the decision under review.

I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member and Dr P Staer , Member

Signed:         ...................(sgd E M Jordan)...........................
  Associate

Date/s of Hearing   8 and 9 November 2005
Date of Decision   6 December 2005
Appearing for the Applicant       Mr G Young      
Counsel for the Respondent     Mr P Dube
Solicitor for the Respondent      Australian Government Solicitor