Perry and Military Rehabilitation and Compensation Commission (Compensation)
[2020] AATA 2385
•17 July 2020
Perry and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 2385 (17 July 2020)
Division:VETERANS' APPEAL DIVISION
File Number(s): 2019/3983
Re:June Perry
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Member A Ward
Date:17 July 2020
Date of written reasons: 17 July 2020
Place:Adelaide
The decision under review is affirmed.
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Member A Ward
Catchwords
WORKERS’ COMPENSATION – entitlement to compensation – failure to serve notice of accident or make claim for compensation - Lumbar spondylosis – Commonwealth prejudiced by failure to give timely notice of accident – Facts do not prove fall causing alleged injury occurred – no service link as causative of alleged condition - decision under review affirmed
Legislation
Commonwealth Employees Compensation Act 1930
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988
Cases
Hunt v Military Rehabilitation and Compensation Commission [2010] AATA 259
REASONS FOR DECISION
Member A Ward
17 July 2020
The Applicant in this matter is Mrs June Perry. The Applicant served in the Women’s Royal Australian Air Force (WRAAF) from 21 June 1957 up to her discharge on 10 May 1963. She had undertaken training at the Laverton Barracks in Victoria and had postings at various bases during the course of her service. Her work was largely office-based clerical. She left service to get married in 1963.
The Applicant submitted a claim for lumbar spondylosis on 11 August 2018. She said in her claim that the injury from a fall in the course of her WRAAF service in 1958, making the claim 60 years after the nominated event.
There is no dispute that the Applicant had significant problems with her back over the course of her life. She had documented back problems during her Defence Force service and underwent extensive treatment for them.
In response to the application, a determination was made on 3 December 2018 declining compensation pursuant to s.14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA). The reviewable decision affirming that determination was made on 9 May 2019. The matter proceeded to hearing under COVID-19 protocols[1] to review the reviewable decision of 9 May 2019. Final submissions were received on 9 July 2020.
[1] COVID-19 Special Measures Practice Direction – FOI, General and Veteran’s Appeals Division27 April 2020
The Applicant has failed to prove that she suffered the injury of lumbar spondylosis as a consequence of her Defence service, for reasons set out below.
The issues concerning the Tribunal were as follows:
(a)Whether the Applicant could maintain a claim given the time that had passed;
(b)What was the correct diagnosis of the Applicant’s condition?
(c)Did the condition arise out of, or in the course of, or was it contributed to the requisite degree by the Applicant’s Defence service?
This is not the first request for compensation that the Applicant has made, previous claims being unsuccessful. So far as the Tribunal is aware, these earlier claims were dealt with on a factual basis rather than rejected on the issue of time.
Under the provisions of section 124 of the DRCA, a claim for compensation for an injury sustained prior to 1 December 1988 is only compensable if the claim would have been compensable under previous legislation.[2] The legislation that applied to the injuries claimed by the Applicant would be the Commonwealth Employees Compensation Act 1930 (the 1930 Act). In particular, section 124 of the DRCA states where relevant:
[2] See Hunt v Military Rehabilitation and Compensation Commission [2010] AATA 259.
“124 (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was or would have been payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
…
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered;”
Section 16 of the 1930 Act sets out a Notice requirement which provides as follows:
“16(1) the Commissioner shall not admit a claim for compensation under this Act unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –
Within six months from the occurrence of the accident; or
In the case of death – within six months after the advice of the death has been received by the claimant;
provided always that –
The want of or any defect of inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
The failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.”
In this case, the Applicant did not make a claim in the manner set out in section 16.
However, the Applicant did obtain treatment for back problems during the course of her service in the WRAAF and there was significant amount of contemporaneous material (given the very long period of time that had passed) that was before the Tribunal for the purpose of this hearing.
Circumstance of Injury
The actual date of the alleged incident – the fall down the stairs - which caused the injury has not been determined with any accuracy. The claim of 11 August 2018 contains the following information:
“I developed severe back pain as the result of a fall on the steps at Laverton WRAAF quarters. I attended the movies on the base and when I rose to leave, I had severe pain and difficulty standing.”
Notwithstanding the date of 1958 in the written application, the case presented at the Tribunal was that this event occurred most likely in 1957. The Applicant said she was going to watch a movie when she slipped on the stairs. Whilst it is not clear, her case was that she slipped down two stairs, which jolted her and then she might have sat down on the stairs as a consequence of the jolt. Otherwise, she slipped on the stairs and came down, landing on her buttocks. It is difficult to see any significance in that difference. Either version could have caused a jolting to her back. On her case she said she was not mindful of significant pain initially, but when the movie finished and she went to get up, she was aware of pain in her back. The nature of this pain has varied in description from very significant to something that she noticed. She said it was difficult to get up from the seat.
There is no evidence at all of her attending a medical practitioner when this occurred, or of her seeking any modification of duties prior to her attendance for medical treatment when she transferred to RAAF Pearce in early 1958. She cannot recall the date of the event, but there are references to this occurring in Spring, and if so, it would have been a matter of weeks or months prior to her transfer to RAAF Pearce where she sought treatment. X-rays taken in March 1958 show evidence of degeneration in her lower back being disc degeneration at the L4-5 level.
However, when she sought treatment for back problems (and the earliest record of this is 10 March 1958) she made no reference to the back problems arising from a fall at a cinema. The first recorded complaint is of pain in her left buttock on and off for six months. That timeframe might fit in with the cinema incident but then the note states: “no specific history of trauma”. Submissions were made to the effect that the Applicant would not have understood what the word “trauma” meant. The Tribunal reads the note as the doctor’s description of what the Applicant told the doctor. The Applicant might not have used the word “trauma” but would have been asked to describe an incident after which the injuries were noticed if one occurred. She has certainly done that for the purpose of this application. It is inconceivable that she would not have done that when discussing it with the doctor for the first time. The word “trauma” might not have been used by her, it might not have been used by the doctor, but the Tribunal finds she did not describe an event that gave rise to the injuries for which she sought treatment in March 1958.
The Applicant went on to have extensive treatment for her back problems whilst in the Defence Force.
Professor Robert Fraser, an eminent orthopaedic surgeon, has said that the back pain experienced by the Applicant, including the right buttock and leg pain during the course of her Air Force service, were probably related to that disc degeneration.[3] He did not say that service caused the degeneration. The Applicant had further investigations over the course of her service. She had specific treatment for her back, including manipulations under anaesthetic and hospitalisation for long periods. Further investigations on 28 March 1962 reported a “slight but appreciable narrowing of L5-S1 disc”. However, the extensive notes relating to all this treatment do not refer anywhere to a fall at work setting off this condition.
[3] His evidence is preferred on this topic, Dr Haig had a different view as to the significance of the early x-ray reports.
The Applicant filled out a document call “Board or Discharge History Questionnaire” which is Exhibit 1 in these proceedings. It was completed on 30 January 1963. There was some discussion as to what part of this document contained her writing and what part contained the writing of an examining medical officer. The difference in handwriting is obvious throughout the document.
In response to a question “Have you suffered from any injuries, illnesses or other disabilities during your RAAF service?”, the Applicant wrote:
“Late 1958 pain occurred in the lower region of spine from buttock. Recurred periodically during 1959. From 1960 pain became more frequent and prolonged hence hospitalisation at 6 RAAF Laverton in 1961 and again 1962”.
The Applicant said that at the time of filling out the form, she was continuing to suffer recurrences of pain in the lower spine which was aggravated by long periods of standing and heavy lifting. One can see even at that relatively close stage to the events, the date of late 1958 is wrong because she was having treatment and investigations in March 1958. The question posed in the document was for the Applicant to “list the disabilities below together with the approximate dates of occurrence and location”. That would have been an opportunity for her to advise as to the location of pain initially occurring at the Laverton Barracks in the vicinity of the movie theatre.
On 24 November 1977, the Applicant made a claim to the Department of Veterans’ Affairs for medical treatment. She stated at that time that she could only work part-time due to recurring pain in her back. She said the pain occurred in the lower part of her spine from 1958 onwards (which is consistent with the notes) and became more persistent. That was in response to a question asking, “What accidents, injuries or illnesses suffered during the service do you consider have any relationship to this claim?” She did not report the fall in that answer.
It would appear that the first reference to the fall which is the subject of these proceedings was on 28 November 2007. Then, she made a further request for compensation and stated in her handwritten request:
“During my service with the WRAAF about September 1960 I had a fall on the stairs of our quarters, a ground floor first floor brick building. Members were requested to live on the base permanently. In the evening, I attended the movie on the base at the time I went to get up I had difficulty in standing because of the chronic pain. I attended medical to see the doctor because of my condition”.
The general essence of what is written is consistent with what she has subsequently said, except for the date of 1960, which is quite wrong, but the reference to September may be consistent with the reference to the fall occurring in Spring. Insofar as the application suggests she saw a doctor as a result of injuries from the fall, there is no evidence of that at all. To the contrary, the evidence is of her not seeing a doctor until 1958 (assuming the incident alleged occurring in 1957). That was certainly the basis upon which the claim proceeded, although as will be observed it was not the year specified in the actual subject application.
Therefore, there is no contemporaneous evidence of a report of a fall which caused the injuries. There is no evidence of the pain being so bad that she had to alter her activities before seeking medical treatment in March 1958. There is evidence that she had degeneration in her lower back in 1958. There is no evidence that that degeneration was caused by a trauma. Her duties may have aggravated the effect of that degeneration, and indeed as noted she had considerable treatment for the effects of it, but they did not cause the degeneration.
The degeneration continued after her Defence Force service and over time became worse.
She was referred to Professor Robert Fraser on 27 July 2001, complaining of disabling back pain, right-sided groin pain and right-sided leg pain extending posteriorly from the buttock to the thigh and calf. Professor Fraser’s history is that those severe symptoms had been present for seven years and the pain had developed spontaneously. His report is that she indicated there had been no accident to her back causing these more severe symptoms. The Tribunal reads this as no specific trauma causing the symptoms that had been present for seven years. That is made clear where Professor Fraser goes on to state, “She did however state that she had experienced back pain and neck symptoms prior to the development of the current problem”.
In response to a claim she pursued for the cost of a spinal fusion (that Professor Fraser ultimately performed) the Department of Veterans’ Affairs commissioned a report from Professor Fraser on her condition.
Professor Fraser was directed to a history that Mrs Perry had experienced back symptoms, including right buttock and leg pain, prior to her discharge from the Defence Force.[4] Professor Fraser noted that those problems were probably related to the disc degeneration at L4-5 which had been demonstrated on the x-rays taken in 1958. He was provided with a history that the Applicant alleged she had a fall during her service and that was the cause of her back and leg symptoms, and asked to comment on that.
[4] He has referred to her service in the Army, when in fact it was the WRAAF, but nothing turns on that.
Importantly for this case, Professor Fraser reported as follows:
“The fact that the symptoms leading to the need for spinal fusion developed only seven years prior to this surgery suggests to me that any contribution from the injury [the alleged fall] that apparently occurred during her service would have been a relatively minor factor in the development of the progressive degenerative process that subsequently required surgery”.
In a schedule of questions that accompanied the report, Professor Fraser was asked to make a percentage rating of the extent to which service in the ADF contributed to the causation or the aggravation, acceleration or occurrence of the condition. He considered the causation from Defence service to be 1-9%. For him to make that consideration is giving the benefit of the doubt to the Applicant that she did have a fall and that the fall was the cause of the back and leg symptoms. Therefore, at best, if the fall occurred, or there was any other contributing factor from her ADF service, it had a minimal effect on the symptoms that had degenerated to the point that a fusion was necessary.
Other medical evidence was before the Tribunal. This included a report from the Dr Butcher, orthopaedic surgeon. He did not examine the Applicant but read the documents. He was not made available for cross-examination. In his report, he said it was apparent to him, having read the documents:
“that her history of back pain is long - standing, and is more or less continuous since the onset of her symptoms following the fall”.
There is no evidence to support continuous symptoms following the fall by way of contemporaneous medical evidence and as discussed above, no evidence linking symptoms to a fall (or any other trauma) at any stage during the course of her service.
The Applicant also tendered a report from a Dr Selby. His understanding was that whilst serving in the Air Force, the Applicant slipped downstairs, causing immediate lower back pain “that persisted despite conservative management including corset”. The evidence does not support that in that it does not prove that she slipped on stairs and had back pain as a consequence of that incident. All it proves is that she presented with back pain in 1958.
Part of the problem for the Applicant is the length of time that has passed which reinforces the importance of time limits on personal injury cases. The Applicant asked that findings be made in her favour in the absence of contemporaneous information that would corroborate a version of events that was not put forward until decades after the alleged events occurred. The Applicant might well reflect, looking back on a lifetime of back pain, on some event that might have occurred and may well genuinely consider that she had a fall from which pain commenced immediately afterwards and persisted.
However, the Respondent has had no opportunity to investigate these allegations and make assessments until many years after the event. As an example, we are reliant on the notes of x-rays back in the 1950s and 1960s rather than the actual x-rays film or other investigative procedures. That is important because there was some dispute as to the relevance of the findings in the early x-rays, with Dr Haig who gave evidence, forming a different view as to their significance to that of Professor Fraser[5]. The highly qualified surgeons who have treated the Applicant during her service have died in the meantime. The difficulty with time can be seen from the various dates pit forward as when these events occurred. The Applicant’s own memory is understandably vague. The practical result of this is that it is very difficult to accept an assertion that is made without corroborative proof. That is why the rather dogmatic views of Drs Selby and Butcher are not helpful. They are based on a history that has not been proven.
[5] As noted the Tribunal prefers the opinion of Professor Fraser on this issue.
The 1930 Act applied to all Commonwealth employees which at the time included Defence Force personnel. However, Defence Force personnel were in quite a different position from Commonwealth Employees at that time. There is no suggestion that the Applicant’s pay was stopped because she was receiving treatment. The Applicant also had access through the Defence Force to highly qualified surgeons and what was considered at the time to be the most appropriate treatment. There would not have been any pressing need on her part to bring a claim for compensation because her pay was maintained and she received the treatment she required. However, one would expect that if she had debilitating back pain following the fall, she would have been required to make complaint about this at a sick parade so her duties could be modified so as to not aggravate the problem. There is no evidence of that having occurred prior to her seeking treatment in March 1958. The only clear evidence is that she had suffered back pain for a period of about six months arising from no specific cause.
That back pain is consistent with degeneration shown on x-rays. There is no evidence that that degeneration came about as a result of her service. That degeneration progressed to the point where she required the invasive surgical treatment by Professor Fraser and after some improvement, has pain has continued to affect her. She has required extensive medical treatment and the use of opioids. There is no doubting her medical condition but insufficient proof that even if the claim was brought within six or ten years of the alleged incident that service contributed to it.
Therefore, the Applicant’s claim fails on two grounds. The first is after assessment of all the available evidence, she has failed to prove that she sustained injuries as a consequence of her service and that despite the existence of documents confirming the problems that she had, the Respondent is prejudiced after so long a period of time of being unable to investigate and confirm the events the Applicant alleges caused the condition.
In the course of this matter there was reference to the injury arising from a fall or otherwise from service. This was alluded to in passing in Final Submissions and also referred to again in passing in Written Submissions. The reference in the Written Submissions is:
“We would note in passing that during her service she was subjected to manipulation under anaesthesia on three occasions. The possibility is raised that further disc damage might have occurred on these episodes of what would appear to be a somewhat unorthodox practice. None of the specialists has commented on this matter”.
It is quite correct that there is no evidence on that point at all and that seems to cover the reference to her service generally causing the back problems. There is no contemporaneous evidence to support that, nor any other aspect of service causing the degeneration. As noted, there is insufficient evidence to prove that occurred. The is no medical evidence to suggest the treatment she received during service made her condition worse. She has a degenerative condition which was unfortunate for her. The Tribunal also rejects the submission by the Applicant that Professor Fraser provided an opinion that “the incident on the stairs in 1957 was the cause of the disc injury (or degeneration)”. That is not what he has said in a report where he was asked to consider those very factors.
For those reasons, the reviewable decision is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Member A Ward.
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Administrative Assistant Legal
Dated: 17 July 2020
Date of hearing: 6 & 7 July 2020
Applicant: Dr Robert Black
Respondent’s representative: Mr Matthew Hawker
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