Perez-Bedoya and Military Rehabilitation and Compensation Commission (Compensation)

Perez-Bedoya and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 1518 (20 September 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/6797
Re:Rafael Perez-Bedoya
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:20 September 2017
Place:Sydney

The Tribunal affirms the decision under review.
.................................[sgd]...................................
Dr L Bygrave, Member
CATCHWORDS
VETERANS’ AFFAIRS – compensation – injury caused by service – whether the Commission must accept liability for service-related injury – claimed conditions were materially contributed to or aggravated by service – back injury – left wrist injury – decision affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth)
SECONDARY MATERIALS
Statement of Principles (No. 63 of 2014)
REASONS FOR DECISION
Dr L Bygrave, Member
20 September 2017

The applicant, Mr Rafael Perez-Bedoya, is 45 years old. He served in the Royal Australian Navy (the RAN) between 18 October 2010 and 17 June 2014 in the position of a Steward.
On 29 July 2014, Mr Perez-Bedoya lodged a Claim for Liability and/or Reassessment of Compensation for a ‘L4-L5 bulging disc’ and ‘torn ligament left wrist’.
On 15 December 2014, a delegate of the Military Rehabilitation and Compensation Commission (the Commission) rejected liability for back sprain and left wrist ganglion distal ulnar. This determination was affirmed in a decision by the Veterans’ Review Board on 27 November 2015.
On 23 December 2015, Mr Perez-Bedoya applied to the Administrative Appeals Tribunal for a review of this decision.
The application was heard in Sydney on 26, 27 and 28 July 2017. Mr Perez-Bedoya attended the hearing in person and had legal representation.
RELEVANT LEGISLATION
Mr Perez-Bedoya’s application relates to a claim for acceptance of liability to pay compensation for a service injury and/or disease under subsection 23(1) of the Military Rehabilitation and Compensation Act 2004 (the Act).
Subsection 23(1) of the Act provides:
(1) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a) the person’s injury or disease is a service injury or disease under section 27; and …
Pursuant to section 27 of the Act:
… an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a) the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b) the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c) in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d) the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease; … [emphasis in original]
For the purposes of the Act, Mr Perez-Bedoya’s service is classified as peacetime service. In accordance with section 339 of the Act, this means the relevant standard of proof is that the injury or disease is, ‘on the balance of probabilities’, connected with that service.
ISSUES
The determinative issues for the Tribunal are whether:
(a)Mr Perez-Bedoya sustained a back injury and left wrist injury as claimed;
(b)the claimed conditions resulted from, or were attributable to, the defence service rendered by Mr Perez-Bedoya;
(c)the claimed conditions were materially contributed to, or aggravated by, Mr Perez-Bedoya’s defence service; and
(d)Mr Perez-Bedoya satisfies the relevant Statement of Principles (SOP) for the claimed conditions.
EVIDENCE
The Tribunal had regard to evidence by Mr Perez-Bedoya, RAN documentation in relation to Mr Perez-Bedoya’s medical conditions and service record, and medical evidence regarding Mr Perez-Bedoya’s claimed back and left wrist injuries. This evidence is set out below.
Evidence of Mr Perez-Bedoya
Mr Perez-Bedoya produced written statements dated 28 April 2016, 23 August 2016, 8 February 2017, and an amended statement on 25 July 2017. He also gave oral evidence at the Tribunal hearing.
Mr Perez-Bedoya’s claim is that he injured his left wrist and back when he fell down stairs at his navy accommodation on Friday 25 October 2013. In an incident report dated 1 December 2014, Mr Perez-Bedoya stated:
…between 10:30 to 11:00 on October 25, 2013 at Homebush Navy Accommodation … I was going down the stairs from my apartment on my way to my car parked at the garage located at the basement of the building when I tripped and injured my left wrist and back. I sat by the stairs for a few minutes until I was able to stand and then went back inside my apartment. I noticed my wrist was swelling and a bit red so I took some strong painkillers, applied an ice pack on the swollen area and had a rest… I called [the Chief of the Accommodation]… He then instructed me to call 1800 I AM SICK who adivised [sic] me to go to the nearest hospital to get checked. I then went to Auburn Hospital…[1]
[1] Exhibit T48.
Mr Perez-Bedoya described his experience at Auburn hospital in the evening of 25 October 2013 as follows:
I went to Auburn hospital, I waited two or three hours and then when I saw the doctor they gave me some very strong painkillers…to pass the weekend until I could go and see the doctors on the base on Monday. They treated my left hand and wrist by putting in place a kind of solid splint which held it, with a bandage wrapped around it. They also put my left arm, elbow and hand in a sling…
They performed an X-ray of my left wrist while I was at Auburn hospital. I remember they examined my wrist carefully because it looked very bad. I told them my back was very sore. I do not specifically recall them examining my back. They advised me to go and see the doctors at the base and get a CT scan of my back and my wrist.[2]
[2] Exhibit A6, paras 22-23.
In his written statements and at the Tribunal hearing, Mr Perez-Bedoya said he saw a doctor at Garden Island on Monday 28 October 2013 who examined his left wrist and back, and wrote a medical certificate for Mr Perez-Bedoya to be on ‘light duties’. Mr Perez-Bedoya asserted that he continued to seek medical advice and was taking pain medication for ‘a long time’ before he had surgery done on his left hand in early to mid-2014.[3]
[3] Exhibit A6, paras 28-29.
Mr Perez-Bedoya stated on 28 April 2016 that he still experiences ‘pain and weakness in [his] left hand and wrist’.[4] He told the Tribunal that he has not had further treatment for his left wrist since 2014 but thinks ‘he may need another operation’.
[4] Exhibit A6, para 36.
Mr Perez-Bedoya further noted that he was discharged from the RAN in June 2014 after he had surgery on his left wrist and while he was on six weeks approved leave for a holiday.[5]
[5] Exhibit A6, paras 31-32.
Mr Perez-Bedoya made the following submissions relating his claims of a left wrist injury and a back injury to his defence service.
First, the Injury of disease details sheets completed on 30 May 2014 for each injury stated the stairs at the navy accommodation were ‘unsafe…because there were no stoppers the carpet was a bit wet was raining that day’.[6]
[6] Exhibits T40 and T41.
Second, in his written statement on 28 April 2016, Mr Perez-Bedoya set out:
The reason I was heading down the stairs was in order to get my uniform was still used and dirty from the previous day’s work. I had been intending to retrieve the uniform from my car and take it up into my apartment, so I could wash and iron it using the facilities in the apartment.[7]
[7] Exhibit A6, para 17.
Third, Mr Perez-Bedoya submitted that his back injury was caused, or aggravated, by:
·frequent heavy lifting of furniture, laundry and boxes of food and catering equipment that he did while he was undertaking wardroom duties as a Steward with the RAN; and
·regular gym sessions he undertook, which included cardio, weight and endurance training, in order to maintain his fitness and pass his annual RAN fitness test.
Mr Perez-Bedoya’s amended written submission on 25 July 2017 provided details about the nature and amount of lifting he undertook in his position as a RAN steward.[8] His written submission on 8 February 2017 set out the frequency and amount of weightlifting undertaken during his navy service.[9]
[8] Exhibit A8.
[9] Exhibit A7.
In closing submissions, Mr Perez-Bedoya’s legal representative conceded it was difficult to measure, on the available evidence, the amount of lifting undertaken by Mr Perez-Bedoya in performing his duties as a Steward. However, his legal representative contended that Mr Perez-Bedoya’s fitness regime during his navy service involved him lifting a minimum of 60,000 kilograms; this was calculated on the basis of Mr Perez-Bedoya undertaking a ‘squats’ routine twice a week for at least 50 weeks, which comprised him lifting 50 kilograms between 21 and 30 times. It was further asserted that this lifting made a material contribution to the quantum of 168,000 kilograms specified at factor 6(i) in the SOP for lumbar spondylosis (No. 63 of 2014).
In relation to Mr Perez-Bedoya’s evidence at the Tribunal hearing, the Tribunal observes that he stated on numerous occasions that his ‘memory is not good’. These repeated claims undermined the reliability of Mr Perez-Bedoya’s evidence and potentially explained inconsistencies between Mr Perez-Bedoya’s evidence and the contemporaneous RAN documentation.
RAN evidence
The Commission provided extensive documentation relating to Mr Perez-Bedoya’s service and his medical records. Relevant documents addressing Mr Perez-Bedoya’s submissions in relation to whether his claimed back and left wrist injuries were caused or aggravated by his defence service are set out below.
Mr Perez-Bedoya’s RAN medical and service records
A chronology of Mr Perez-Bedoya’s medical conditions relating to back injuries and his left wrist injury is collated below from Mr Perez-Bedoya’s RAN medical records:
·Mr Perez-Bedoya presented on 2 December 2011 with ‘sore lower back after doing sit ups…given ibuprofen and voltaren gel [revisit] if not settling’.[10]
[10] Exhibit T5, p 113.
·MRI thoracic spine, 20 January 2012. Mr Perez-Bedoya presented with a clinical history of five weeks of thoracic pain and Dr James Black (Radiologist) concluded ‘no significant abnormality…identified’.[11]
[11] Exhibit T9.
·Regional Health Service NSW (1800 I AM SICK) record on 25 October 2013 at 18:46. Record stated Mr Perez-Bedoya was at Homebush and going to emergency. The nature of injury is described as ‘fell down steps and landed on wrist (left) bone unaligned’.[12]
[12] Exhibit ST36.
·Auburn hospital patient health record dated 25 October 2013. Triage notes made at 20:09 state that Mr Perez-Bedoya presented with ‘painful left wrist after a fall this am has had Panadeine Forte an hour ago’. An x-ray of left wrist at 9:05PM showed ‘no acute fracture, dislocation seen’. The record has no reference to Mr Perez-Bedoya’s back.[13]
[13] Exhibit R3.
·Department of Defence clinical records, 29 October 2013. Dr Michael Halpin recorded Mr Perez-Bedoya had ‘wrist pain ongoing since fall on outstretched hand…otherwise ok…’ and x-ray showed ‘nil fracture or dislocation seen’.[14]
[14] Exhibit ST38-ST39.
·X-ray left wrist, 29 October 2013. Dr John Fraser (Radiologist) reported ‘main finding of note is the presence of an expansile lytic lesion measuring 1.6 cm in diameter expanding the base of the thumb metacarpal’.[15]
·Department of Defence clinical record, 4 November 2013. Dr Jane Roberts recorded Mr Perez-Bedoya reported ‘ongoing pain in ulnar aspect left wrist’. He was referred for ultrasound and physiotherapy.[16]
·MRI left wrist, 4 November 2013 and MRI left thumb, 5 November 2013. Dr Jennie Noakes (Radiologist) concluded there was a ‘lobulated and septated 12 mm ganglion cyst’ and ‘slight ulnar plus variance’.[17]
·Department of Defence clinical record, 12 November 2013. Dr Jane Roberts recorded Mr Perez-Bedoya ‘presented to sick parade reporting lower dorsal spine pain for 2-3 days with no history of trauma although he…considers that this is related to his left wrist pain. Has had back pain in the past’.[18]
·Department of Defence clinical record, 14 November 2013. Dr Liz Griffin recorded Mr Perez-Bedoya had a ‘painful left wrist now in a splint following fall on outstretched hand two weeks ago. MRI shows a partial thickness tear…’ Dr Griffin referred Mr Perez-Bedoya to Dr Beard.[19]
·X-ray and MRI lumbar spine, 3 December 2013. Dr Michael Houang (Radiologist) concluded ‘L3/4, L4/5 disc shows protrusions more marked at the L4/5 level centrally with annular tear indenting the sac in contact with the L5 nerve root on both sides’.[20]
·Report by Dr Mark Winder (Neurosurgeon and Spinal Surgeon) on 5 December 2013. Dr Winder noted the results of the MRI and opined Mr Perez-Bedoya ‘sustained predominantly a musculoskeletal injury to his back which… will settle over time… He requires no further neurosurgical follow up… it will just take time for his back and his wrist to heal’.[21]
·Encounter Detail Report (1800 IM SICK), 6 December 2013. Mr Perez-Bedoya reported ‘Back Symptoms – Upper / Lower’.[22]
·Lumbar epidural injection performed on 17 December 2013.[23]
·Reports by Dr Anthony J Beard on 4 December 2013, 14 February 2014, 24 February 2014, 3 April 2014, 2 May 2014.[24] On 3 April 2014, Dr Beard reported that Mr Perez-Bedoya underwent ‘excision of the ganglion from the ulnar volnar aspect of his left wrist’ on 21 March 2014.
[15] Exhibit T13.
[16] Exhibit ST40.
[17] Exhibit T14 and T15.
[18] Exhibit T5, p 55.
[19] Exhibit ST41.
[20] Exhibit T18.
[21] Exhibit T20.
[22] Exhibit ST43.
[23] Exhibit T22.
[24] Exhibits T19, T26, T29, T32 and T37.
Mr Perez-Bedoya’s Service Record shows his service information, including his posting history and leave history. Relevantly, on the date of his claimed injuries – 25 October 2013 – Mr Perez-Bedoya was on ‘Short Absence from Duty’ leave and was on ‘ADF War and Annual Leave’ from 28 October 2013 to 4 November 2013.[25]
[25] Exhibit T4, p 10.
The Tribunal notes that the Commission produced extensive documentation regarding Mr Perez-Bedoya’s performance while in the RAN and the process of Mr Perez-Bedoya’s termination from the RAN. The Tribunal considers these issues are not pertinent to the issues for determination as set out in paragraph 10 of these reasons.
Medical evidence
Both Mr Perez-Bedoya’s legal representative and the Commission sought independent medico-legal examination of Mr Perez-Bedoya’s claimed injuries by Dr James Vote (Orthopaedic Surgeon) and Associate Professor Neil McGill (Consultant Rheumatologist).
Evidence – Dr Vote
Dr Vote provided reports dated 21 March 2016 and 1 November 2016, and attended the Tribunal hearing to give evidence. He stated that he examined Mr Perez-Bedoya on 21 March 2016 and his reports were based on the history provided by Mr Perez-Bedoya, the appropriate clinical examination and the documents provided.
Dr Vote reported that Mr Perez-Bedoya presented with symptoms relating to his left wrist and lumbar spine, and opined:
Physical examination reveals a man in no apparent discomfort… He indicates that the site of his pain is the lower lumbar area... His back has normal curves. His lumbar movements are really quite good... From the position of forward flexion, extension is possible, but there is a painful arc… His lower limbs did not exhibit any signs of nerve root tension or neurological deficit and his hips are normal. In relation to his left wrist, there is a healed incision over the volar aspect of the ulnar styloid. There is no appreciable swelling. He has an excellent range of movement, but is a little tender on firm pressure over the distal styloid area. His distal sensation is normal in relation to the ulnar nerve and there is no loss of intrinsic power or long flexor power in the ulnar two fingers.[26]
[26] Exhibit A11, p 3.
Dr Vote diagnosed Mr Perez-Bedoya’s back pain as ‘aggravation of pre-existing lumbar spondylosis’ and his wrist condition as ‘traumatic ganglia formation secondary to direct trauma as a result of his fall’.[27]
[27] Exhibit A11, p 3.
At the Tribunal hearing, Dr Vote confirmed his diagnosis of lumbar spondylosis. He opined that Mr Perez-Bedoya has a degenerative condition but, at the date of consultation, Mr Perez-Bedoya had no clinical issues with his back and he does not require further treatment for his back or Gabapentin (pain medication). He acknowledged it is difficult to place a date for the onset of Mr Perez-Bedoya’s lumbar spondylosis but noted ‘it seemed to be related to a fall’ and a history of substantial lifting could be a contributing factor to the onset or aggravation of this condition.
Dr Vote told the Tribunal that Mr Perez-Bedoya suffered ‘trauma’ to his left wrist when he fell and landed on his wrist on 25 October 2013. He stated that the medical documents he was provided indicated a ganglion was created but there was no evidence of a ganglion when he examined Mr Perez-Bedoya in March 2016.
Evidence – Associate Professor McGill
Associate Professor McGill provided written reports dated 6 July 2016 and 22 September 2016, and gave oral evidence at the Tribunal hearing.
On 6 July 2016, Associate Professor McGill reported Mr Perez-Bedoya demonstrated a full range of movement in his lower back and left wrist, and noted that his:
·left wrist injury was a ‘strain’ that has ‘followed the expected pathway of recovery… [he] demonstrated a full range of movement and there was full power’; and
·
low back condition was an ‘aggravation of pre-existing degenerative change in the lumbar discs’ and he ‘demonstrated a full fluent range of movement and had a normal lower limb neurological examination’.[28]

[28] Exhibit R6, p 6.
Associate Professor McGill opined that:
The discrepancy between [Mr Perez-Bedoya’s] reported level of symptoms in both the left wrist and low back on the one hand and the reassuring clinical and radiological findings on the other, is likely to reflect his emotional and psychological makeup.
Taking into consideration his psychological makeup, I think he does continue to suffer a minor effect of the injury in October 2013, both at the left wrist and in the low back. His physical prognosis is good. Reassurance and encouraging him to return to all normal physical activities, are the appropriate management strategies. I think further invasive therapy (injection, surgery) would be inappropriate and counter-productive.[29]
[29] Exhibit R6, pp 6-7.
In a supplementary report dated 22 September 2016, Associate Professor McGill considered:
…the aggravation of pre-existing degenerative change in the lumbar spine as a result of the fall on 25 October 2013…has resolved. Mr Perez-Bedoya demonstrated a fluent full range of movement and had a normal neurological examination.[30]
[30] Exhibit R7, p 1.

Associate Professor McGill told the Tribunal that Mr Perez-Bedoya is ‘normal’ and he ‘does not require further treatment for either his back or wrist’. He opined that Mr Perez-Bedoya’s back pain in 2013 was a temporary exacerbation of degenerative changes.
CONSIDERATION AND FINDINGS
Mr Perez-Bedoya’s legal representative contended that Mr Perez-Bedoya’s claimed injuries were attributable to his defence service because:
·his injuries were sustained at the premises of his RAN accommodation when he was going to his car to collect his navy uniform; and
·his back injury was caused and/or aggravated by a requirement for him to lift weights at the gym in order to pass his annual RAN fitness test.
The Tribunal accepts that Mr Perez-Bedoya fell on the stairs at the Homebush Navy Accommodation on 25 October 2013 but finds there is no evidence to support his claim that any injuries he sustained resulted from, or were attributable, to his defence service. In particular, the Tribunal is satisfied:
·There is no evidence that Mr Perez-Bedoya was required to live at Homebush Navy Accommodation as part of his defence service. Rather, Mr Perez-Bedoya’s evidence was the RAN package for people with families included food, accommodation and child support, and this was a more affordable option for him than privately renting.
·There is no evidence the stairs at Homebush Navy Accommodation were wet due to rain on 25 October 2013. A Bureau of Meteorology report for Sydney in October 2013 shows there was no rain in the whole of the metropolitan Sydney area on 25 October 2013.[31]
·There is no contemporaneous evidence that Mr Perez-Bedoya was going to his car to collect his RAN uniform. Mr Perez-Bedoya was on pre-approved annual leave on 25 October 2013 when he fell. He made no statement about going to his car in order to collect his uniform until his written statement of 28 April 2016, almost two and a half years after the date of injury. He did not mention collecting his uniform in his Claim for Liability and/or Reassessment of Compensation form dated 10 July 2014 or his incident report on 1 December 2014.
[31] Exhibit R2.
The Tribunal finds the evidence that Mr Perez-Bedoya injured his left wrist injury when he fell on 25 October 2013 is consistent. The medical evidence shows Mr Perez-Bedoya’s left wrist injury was treated at Auburn Hospital on 25 October 2013, by RAN doctors from October to December 2013, and by specialists from December 2013 to May 2014. Mr Perez-Bedoya underwent surgery to excise a ganglion from his left wrist in March 2014, and both Dr Vote and Associate Professor McGill told the Tribunal this condition has largely resolved.
The Tribunal is not persuaded that Mr Perez-Bedoya injured his back on 25 October 2013. The medical evidence shows that Mr Perez-Bedoya experienced periodic back pain in 2011 and 2012 as well as November 2013. Mr Perez-Bedoya did not report any back pain when he attended Auburn Hospital on 25 October 2011 and first reported experiencing lower back pain ‘for 2-3 days’ on 12 November 2013, more than three weeks after his fall on 25 October 2013.[32] Both Dr Vote and Associate Professor McGill concurred that Mr Perez-Bedoya’s low back pain experienced in November 2013 was an aggravation of a pre-existing degenerative change in the lumbar spine and the aggravation had resolved when they examined Mr Perez-Bedoya in 2016.
[32] Exhibit T5, p 55.
The Tribunal is also not persuaded that Mr Perez-Bedoya’s back injury resulted from or was aggravated by lifting weights at the gym. While the Tribunal accepts the submission that Mr Perez-Bedoya was required to maintain his fitness and to pass an annual medical test to remain in the RAN, there is no evidence that his role as a Steward required him to complete heavy weight-lifting sessions.
The Tribunal is satisfied that, on the balance of probabilities, the injuries claimed by Mr Perez-Bedoya on 29 July 2014 for a ‘L4-L5 bulging disc’ and ‘torn ligament left wrist’ did not result from, and were not attributable to, his defence service. Further, these injuries were not materially contributed to, or aggravated by, Mr Perez-Bedoya’s defence service.
As the Tribunal finds Mr Perez-Bedoya’s claimed injuries were not caused or aggravated by his defence service, there is no requirement to consider whether he satisfied the relevant SOPs for the claimed conditions.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate
Dated: 20 September 2017

Dates of hearing: 26, 27 and 28 July 2017

Solicitors for the Applicant: Ms E Rice & Ms D Pontes, Legal Aid New South Wales

Counsel for the Respondent: Mr B Kelly

Solicitors for the Respondent: Ms A Fernandes, Sparke Helmore Lawyers

[2017] AATA 1518

20 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Procedural Fairness

Standing

Statutory Construction

Dates of hearing:	26, 27 and 28 July 2017
Solicitors for the Applicant:	Ms E Rice & Ms D Pontes, Legal Aid New South Wales
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Ms A Fernandes, Sparke Helmore Lawyers