Piercy and Military Rehabilitation and Compensation Commission (Compensation)

[2004] AATA 259

Piercy and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 156

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/3426
Re	Karen Piercy
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	16 March 2016
Place	Brisbane

I affirm the decision under review.

............................[sgd].................................

Deputy President Dr P McDermott RFD

Catchwords

COMPENSATION – service in the Royal Australian Navy – liability claim for cervical condition and thoracic condition – weight accorded to expert evidence – diseases not caused by employment – decision under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 5C, 14, 64

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) cl 41

Cases

Sullivan and Military Rehabilitation and Compensation Commission [2004] AATA 259

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Kennedy v Cordia (Services) LLP [2016] UKSC 6

Sullivan v Civil Aviation Safety Australia Authority (2014) 226 FCR 555

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

16 March 2016

1. This application is brought by Ms Karen Piercy (“the applicant”). The applicant served in the Royal Australian Navy from 6 June 1994 until 31 March 2007.

2. On 17 June 2013 the applicant completed a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for rehabilitation and compensation. In the claim form the applicant indicated that the part of the body that was affected was her neck in respect of cervical spondylosis and thoracic spondylosis. In the claim form she also stated that the injury occurred on 16 November 2001 at 11:40pm when a metal hatch suddenly fell onto her head and hands.[1]

   [1] Exhibit A: T-Documents. T48.

3. On 4 September 2013 the respondent made a determination that the Commonwealth would not extend liability to include, or pay compensation for, a cervical condition or a thoracic condition under s 14 of the Act.[2] On 10 June 2014 a Review Officer affirmed the determination.[3] This determination is reviewable by this Tribunal under s 64 of the Act.

   [2] Exhibit A: T-Documents. T51.

   [3] Exhibit A: T-Documents. T58.

   ISSUES

4. Section 14(1) of the Act provides that:

   (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

   …

5. The first issue arising from s 14 of the Act is whether the applicant was an employee at the time the injury was incurred. Section 5(1)(a) of the Act provides that an “employee” is:

   (a)  a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or

   (b)  a person who is employed by a licensed corporation.

6. The second issue is whether the applicant suffered an injury. Section 5A(1) provides that an “injury” is:

   (a) a disease suffered by an employee; or

   (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

7. The third issue is whether the applicant suffered the injury in the course of their employment. Section 6(1) provides a non-exhaustive list of circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment.

8. The relevant test of causation is dependent on whether or not the injury was classed as a disease. Section 5B(1) of the Act requires that the ailment, or the aggravation of the ailment, be contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. Section 5B(3) provides that, for the purpose of the section, “significant degree” means:

   …a degree that is substantially more than material.

9. Section 5B(2) provides a non-exhaustive list of matters that may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth:

   (a)       the duration of the employment;

   (b)       the nature of, and particular tasks involved in, the employment;

   (c)       any predisposition of the employee to the ailment or aggravation;

   (d)       any activities of the employee not related to the employment;

   (e)       any other matters affecting the employee’s health.

10. The Tribunal is required to consider whether the newer stricter test should apply under the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) (“the 2007 Amendment Act”). The 2007 Amendment Act provided a definition of disease in cl 41 of Sch 1 which provided:

    (1) The definition of disease in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to:

    (a) an ailment suffered by an employee; or

    (b) an aggravation of such an ailment;

    that the employee suffers on or after the day after this Act receives the Royal Assent.

    (2) For the purposes of subitem (1), an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988.

11. The amending legislation received Royal Assent on 12 April 2007. Because of cl 41(2), the Tribunal has to determine whether the date determined by s 7(4) of the Act was on or after 12 April 2007. Section 7(4) provides:

    For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

    (a) the employee first sought medical treatment for the disease, or aggravation; or

    (b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

    whichever happens first.

12. The question of which test of causation applies in the instant case could only be answered by considering the question in s 7(4)(a) which was when did the applicant first seek treatment, or the question in s 7(4)(b) which is when did the disease first result in an incapacity for work or impairment. Where the injury is not classed as a disease and occurred prior to 2007, the appropriate test of causation is whether the condition was contributed to, to a material degree, by the applicant’s employment.

    EVIDENCE

13. The applicant made a statement on 15 September 2014 which was tendered in evidence[4] and gave oral evidence at the hearing. In 1994 she enlisted with the Royal Australian Navy as a vitteler. In 1999 she began serving as a cook. On 31 March 2007 she was medically discharged.

    [4] Exhibit B: Statement of Ms Piercy dated 15 September 2014.

14. The applicant stated that she suffered from headaches from 1995. These headaches were reported multiple times in Outpatient Clinical Records which span between 16 May 1995 and 23 April 2007.[5]

    [5] Exhibit A: T-Documents. T4.

15. On 14 March 2001 the applicant participated in white water rafting as a part of a training exercise. An accident occurred whilst the applicant was participating in the exercise which caused her to fracture her coccyx (“the rafting incident”).[6]

    [6] Exhibit A: T-Documents. T12.

16. In 2001 the applicant was posted on a mine hunter vessel (“the Diamantina”) as a member of the commissioning crew. On 16 November 2001 the applicant was climbing down a ladder on the Diamantina when a metal hatch suddenly fell onto her head and hands (“the hatch incident”). The hatch weighed approximately 30 kilograms.

17. The applicant does not have a clear memory of the hatch incident. When she was pressed about the hatch incident in cross-examination, she stated:[7]

    …I don’t honestly remember… I honestly don’t know. All I remember is being at the bottom of the stairs and everyone asking me if I was okay.

    [7] Transcript of hearing 13 October 2015, p. 23.

18. The hatch incident resulted in a Defence Occupational Health and Safety Incident Report being completed. The report provided that the result of the incident was a ‘minor incident or injury’.[8]

    [8] Exhibit A: T-Documents. T8.

19. The applicant did not seek medical attention at the time of the hatch incident. She agreed that on the focus of the entry in the Outpatient Clinical Records on 20 November 2001 was on persistent coccyx pain and did not refer to her neck or the hatch incident.

20. The applicant was questioned about an entry in the medical records on 11 December 2001 which referred to the coccyx injury. She stated that she had told the medical practitioner that it was her back which was then the subject of persisting pain. When she was asked why she didn’t refer to the hatch incident at the appointment she stated that she didn’t believe that the incident ‘was anything significant’.[9]

    [9] Transcript of hearing 13 October 2015, p. 20.

21. On 9 August 2004 the applicant made an application for compensation for a fractured coccyx and coccydnia condition arising from the rafting incident.[10] On 24 August 2004 the respondent accepted liability for the condition.[11]

    [10] Exhibit A: T-Documents. T12.

    [11] Exhibit A: T-Documents. T13.

22. There are a number of entries contained in Outpatient Clinical Records between 2003 and 2004.[12] When it was suggested to the applicant that her complaints of pain during this period solely concerned the fractured coccyx and coccydnia condition she responded that:[13]

    When I would go to the doctors, I would just say that my back was sore. Obviously we would just tie it back to my coccyx…

    [12] Exhibit A: T-Documents. T4.

    [13] Transcript of hearing 13 October 2015, p. 26.

23. The applicant agreed that Outpatient Clinical Records do not record any report of the hatch incident causing a neck injury. She answered that the records did not include ‘a lot of things that happened’.[14]

    [14] Transcript of hearing 13 October 2015, p. 32.

24. On 18 January 2012 when the applicant was on the driveway of her premises she slipped. She consequently attended a general practitioner and reported the incident. The general practitioner recorded that the applicant has complained of both lower back pain and of pain in the upper back and neck.[15]

    [15] Exhibit E: Medical Record dated 18 January 2012.

25. The applicant agreed that the pain in her neck commenced within 12 to 18 months prior to her appointment with Dr Journeaux in 2014. However she stated that:[16]

    I’ve always complained about thoracic pain which runs from the back of my right shoulder blade, up along here and across my forehead. So I always complain about that; not about neck pain.

    [16] Transcript of hearing 13 October 2015, p. 28.

26. There is a substantial amount of medical evidence before the Tribunal. Two expert medical specialists gave oral evidence at the hearing: Dr Peter Sharwood and Dr Simon Journeaux.

27. Dr Sharwood found that the applicant has had symptoms consistent with cervical spondylosis as far back as 1996. He indicated that she has a cervical spine condition. He reported that the unit medical records revealed that the applicant:[17]

    …had multiple complaints of back pain, stiffness, neck pain which seemed to be first recorded in August 1996 and there were more investigation[s] in April and May 1998 and an episode in 1999.

    [17] Exhibit A: T-Documents. T55.

28. Dr Sharwood also reported that the applicant had informed him that the hatch incident:[18]

    …aggravated her pre-existing problems of neck and back pain and headaches and also precipitated pain in the interscapular area of her back. This was variously interpreted as thoracic pain and investigations of her thoracic spine were performed including X-rays which showed that she had a mild scoliosis.

    [18] Exhibit A: T-Documents. T55.

29. Dr Sharwood has concluded that the hatch incident had aggravated the pre-existing degenerative change. He also found that it was ‘very likely’ that the hatch incident ‘caused the disc disease to the 3/4 level’.[19] Under questioning at the hearing he was unable to recall why he came to this conclusion.

    [19] Exhibit A: T-Documents. T55.

30. Dr Sharwood considered that the applicant’s thoracic spondylosis ‘was directly related to her long-standing thoracic scoliosis which no doubt was present as a teenager’. The highest that he could put it was that ‘her military service would have been a contributing factor through to the onset of thoracic spondylosis in this area. It would be less than 50% of the cause’.[20] 

    [20] Exhibit C: Report of Dr Sharwood dated 4 March 2015, p.1.

31. Dr Sharwood gave oral evidence that it was reasonable that the applicant had not reported upper neck pain to a medical practitioner for several years after the hatch incident. He indicated that it could take up to 20 years after an injury was sustained that the symptoms become identifiable.

32. Dr Journeaux found that the applicant had ‘ongoing significant cervical spine pain’ and ‘ongoing mid-thoracic pain’. He found that the applicant has ‘constitutional aged related changes only’ with no ‘significant bony injury in respect of the spinal column other than in respect of the coccyx’.

33. Dr Journeaux reported that the applicant has ‘in terms of objective pathology… constitutional aged related changes only’. [21] He considered that, in view of the medical materials and reports made available to him, the applicant ‘did not sustain any significant injury at the time’ of the hatch incident. He gave oral evidence that if the applicant had sustained a permanent aggravation of a cervical spondylosis as a result of the hatch incident then the symptoms would have been present shortly afterwards. He remarked:[22]

    So if there’s a significant incident and a significant history of injury one would expect symptoms really to come on contemporaneous to that incident, and it would not be unreasonable potentially to have things come on within one to two weeks. But when you’re getting up over months and years that’s, to me, a bit of a stretch, in terms of causation.

    [21] Exhibit D: Report of Dr Journeaux dated 27 October 2014 at p. 19.

    [22] Transcript of hearing 13 October 2015, p. 48.

34. Dr Journeaux stated that the MRI scans revealed a significant degeneration for someone of the applicant’s age. He considered that this meant that there were significant genetic constitutional factors in the pathogenesis of her cervical spondylosis.

35. Dr Journeaux highlighted that the applicant has multi-level degeneration from C4 to C7. He gave oral evidence that because multiple levels had been affected this reflected degenerative pathology and was not suggestive of being ‘caused by a single injurious event, by any stretch of the imagination’.[23]

    [23] Transcript of hearing 13 October 2015, p. 49.

36. Dr Journeaux noted that during the clinical examination he observed ‘significant abnormal illness behaviour’. He indicated that the applicant had previously been diagnosed with ‘adjustment disorder with associated depression’ which he described as a ‘highly relevant… negative prognostic factor’.[24] He concluded that it was ‘highly likely that much of the claimant’s symptomatology has the basis in the somatic manifestation of psychological distress’.[25]

    CONTENTIONS

    [24] Exhibit D: Report of Dr Journeaux dated 27 October 2014 at p. 19.

    [25] Exhibit D: Report of Dr Journeaux dated 27 October 2014 at p. 19.

    Applicant’s Contentions

37. It was undisputed between the parties that the hatch incident occurred. The primary issue in dispute was the effect of the hatch incident, namely, whether it caused the applicant to suffer a cervical condition and/or a thoracic injury. The applicant contended that the hatch incident must have been significant because another personnel member on the ship completed an incident report.

38. The applicant contended that the hatch incident caused the applicant to suffer cervical spondylosis and thoracic spondylosis. The applicant relied on the expert evidence of Dr Sharwood that the hatch incident caused the disc change to level C3/4.[26]

    [26] Exhibit A: T-Documents. T55.

39. The applicant contended that she sustained an injury in the hatch incident which aggravated a pre-existing degenerative change. The applicant relied upon the expert evidence of Dr Sharwood that the level of constitutional change was much greater than would be expected of someone of the applicant’s age.[27]

    [27] Exhibit A: T-Documents. T55.

40. It was conceded by the applicant that she was not diagnosed with cervical spondylosis and thoracic spondylosis at the time of the hatch incident. However, it was contended that Outpatient Clinical Records suggest that she had sought medical treatment for upper scapula pain in 2003, 2004 and 2007. The applicant made reference to the Physiotherapy Discharge Summary of 16 December 2004 by way of example.

    The applicant conceded that her conditions had worsened between 2012 and 2014. It was contended, however, that the worsening of the conditions several years after the hatch incident was not fatal to her claim.

    Respondent’s Contentions

41. The respondent contended that there was insufficient causation between the applicant’s conditions and the hatch incident. The respondent contended that the cause of the applicant’s pain is minor constitutional age related degenerative changes to her spine.

42. The respondent contended that the oral evidence of the applicant was unreliable because her memory of the hatch incident had deteriorated and she could not recall details of the incident, such as whether she was rendered unconscious.

43. The respondent contended that there was inadequate contemporaneous medical evidence to establish causation between the applicant’s back and neck injuries to the hatch incident. It was pointed out that the incident report arising from the hatch incident classified the incident as ‘minor’ and did not record any cervical spine injury. The respondent contended that the incident report does not assist with respect to determining whether the hatch incident brought about any injury.

44. The respondent contended that the medical records between 2003 and 2004 did not relate to the conditions before the Tribunal. Dr Journeax considered that the records relate to pain in the middle back, thoracic back which is relevant to the thoracic scoliosis and spondylosis, but is unrelated to cervical spondylosis.

45. In relation to the Physiotherapy Discharge Summary of 16 December 2004, the respondent contended that there is no connection between the medical note and any mention of a neck injury and the hatch incident. While the diagnosis refers to postural neck and upper back pain, this is done in the context of the presenting history of complaints of chronic neck and upper back arising out of to the coccyx injury and sitting on a cushion for relief from coccyx pain.

46. The respondent contended that the expert evidence of Dr Journeaux should be given greater weight than that of Dr Sharwood. Dr Journeaux was able to support his opinions with medical research literature and with the MRI results. In contrast, Dr Sharwood could not identify the basis of his opinion that the C3/4 disc disease was caused by service.

47. The respondent contended that Dr Sharwood’s opinion that there can be up to a 20 year lag period from an incident to the onset of symptoms should be given little weight because it was given without reference to any literature, radiological examinations or other medical evidence.

    CONSIDERATION

48. As Senior Member Kenny explained in Sullivan and Military Rehabilitation and Compensation Commission [2004] AATA 259 at [17], a determination under s 14 of the Act requires findings that an applicant was an employee at the relevant time, had suffered an injury for which they had given appropriate notice, made a claim for compensation, and suffered an injury which resulted in incapacity for work or impairment.

1. The first issue that the Tribunal must consider is whether the applicant was an ‘employee’ at the relevant time. The applicant served with the Royal Australian Navy between 6 June 1994 until 31 March 2007. She was serving on the Diamantina 16 November 2001 when the hatch incident occurred. This is apparent from the Defence Occupational Health and Safety Incident Report dated 16 November 2001.[28] I am satisfied that the applicant was an employee for the purposes of s 5(1)(a) of the Act.

   [28] Exhibit A: T Documents. T7-T8.

2. The second issue for consideration is whether the applicant suffered an injury. I note that the coccyx injury is not related to the current application. The Tribunal is required to determine whether the applicant has suffered a thoracic and/or a cervical injury.

3. It is unclear when the applicant first experienced pain in the neck region. On 20 July 2012 the applicant informed Dr Sarah Watts that she had neck stiffness which she described as tightening with movement rather than pain. However, in her examination with Dr Journeaux on 15 October 2014 she stated that she had an onset of pain 12 to 18 months prior to her examination.[29]

   [29] Exhibit D: Report of Dr Journeaux dated 27 October 2014 at p. 19.

4. Dr Sharwood has diagnosed the applicant with cervical spondylosis. [30] Dr Journeaux diagnosed the applicant as having spondylosis with degenerative changes and ‘ongoing significant cervical spine pain’.[31]

   [30] Exhibit A: T Documents. T55.

   [31] Exhibit D: Report of Dr Journeaux dated 27 October 2014 at p. 19.

5. Dr Sharwood found that the applicant had a minimal degree of thoracic spondylosis. [32] Dr Journeaux diagnosed the applicant with “ongoing mid-thoracic pain”.[33] Both medical experts accept that the applicant has the thoracic condition of spondylosis.

   [32] Exhibit C: Report of Dr Sharwood dated 4 March 2015.

   [33] Exhibit D: Report of Dr Journeaux dated 27 October 2014 at p. 19.

6. A related issue for determination is whether the injury would be regarded as a disease for the purposes of s 5A(1)(a) of the Act. This is relevant to the test of causation to be applied. Section 5B(1) provides that, in determining whether the applicant has suffered an injury under s 5A(1)(a), a ‘disease’ is:

   (a) an ailment suffered by an employee; or

   (b) an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

7. Section 4 provides that an ‘ailment’ is:

   any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

8. Dr Sharwood considers that the cervical condition has its onset in 1996 and the pre-existing degenerative change was aggravated in the hatch incident.[34] He also opined that the thoracic spondylosis was ‘directly related to her thoracic scoliosis which no doubt was present as a teenager’.[35] These findings are consistent with the conditions being an ailment or an aggravation of an ailment.

   [34] Exhibit A: T Documents. T55.

   [35] Exhibit C: Report of Dr Sharwood dated 4 March 2015.

9. The fourth issue for the Tribunal to determine is whether the 2007 amendments apply. Section 7(4)(a) provides that the former provisions apply if the applicant sought medical treatment for an aggravation of the conditions prior to 12 April 2007. It appears that the applicant did not seek treatment for an aggravation of the thoracic or cervical conditions until 18 January 2012. The applicant sought medical attention numerous times prior to 12 April 2007. However, the Outpatient Medical Records do not indicate that the applicant sought medical treatment for a thoracic or cervical condition. Rather they are generally focused on the coccydnia condition.

10. Section 7(4)(b) provides that the former provisions apply if the aggravation first resulted in the incapacity for work or impairment of the employee prior to 12 April 2007. The applicant was discharged on 31 March 2007, which is prior to the date of Royal Assent. The Comprehensive Discharge Report of 17 March 2006 refers to coccydynia and thoracic and lumbar strain secondary to adopted sitting positions.[36] The report does not refer to the thoracic or cervical conditions which are the subject of the current application. The Tribunal cannot find on the balance of probabilities that the aggravation of the thoracic or cervical conditions resulted in an incapacity for work or impairment prior to 12 April 2007. Therefore, the Tribunal is required to apply the newer stricter test of causation.

    [36] Exhibit A: T Documents. T23.

11. The fifth issue for consideration is whether either or both of the diseases were contributed to, to a significant degree, by the applicant’s employment. This requirement is set out under s 5B(1) of the Act. Section 5B(3) provides that, for the purpose of the section, ‘significant degree’ means ‘a degree that is substantially more than material’.

12. The applicant claimed that the hatch incident contributed to her cervical and thoracic conditions to a significant degree. In relation to the thoracic condition, Dr Sharwood indicated that the applicant’s military service would ‘be less than 50% of the cause’ of the thoracic spondylosis.

13. The two expert opinions conflicted on the degree to which the hatch incident contributed to the applicant’s cervical condition. Dr Sharwood opined that the hatch incident aggravated the pre-existing degenerative change and caused the disc disease to the 3/4 level.[37] Dr Journeaux opined that the applicant did not sustain any significant physical injury from the hatch incident. I have attributed greater weight to the latter opinion than the former for the following reasons.

    [37] Exhibit A: T Documents. T55.

14. First, there was a significant lapse between when the hatch incident occurred and when the applicant’s cervical condition worsened. There is an absence of any medical evidence of the applicant sustaining an injury at the time of the hatch incident. The Outpatient Clinical Records do not expressly refer to a neck injury or a cervical condition for the years following the hatch incident. The respondent was correct in pointing out that there are no documents which suggest that the applicant sustained an injury from the hatch incident until she lodged her claim on 17 June 2013.

15. The applicant gave evidence that the onset of neck pain happened 12 to 18 months prior to her examination with Dr Journeaux on 15 October 2014.  Dr Sharwood gave evidence that it could take up to 20 years after an incident for symptoms to be identified. However, this statement was not supported by any medical evidence or literature and it was firmly contradicted by Dr Journeaux.

16. Secondly, there is compelling evidence that the applicant’s cervical condition is the result of age-related degenerative constitutional changes. The MRI scans completed on 12 March 2013 revealed significant degeneration for someone of the applicant’s age. However, this is consistent with the applicant’s medical record which contained evidence of cervical spondylosis as early as 1996.[38]

    [38] Exhibit A: T Documents. T55.

17. Thirdly, the applicant has multi-level degeneration from C4 to C7. I rely upon the opinion of Dr Journeaux who was firmly of the opinion that the fact that multiple levels have degenerated is indicative of a degenerative pathology as opposed to a single accident.[39]

    [39] Transcript of hearing 13 October 2015, p. 49.

18. Fourthly, in cross-examination Dr Sharwood was unable to identify the basis of his opinion that the C3/4 disc disease was caused by the hatch incident. The common law basal principle provides that the admissibility of expert evidence is dependent on proper disclosure and proof of the factual basis of the opinion.[40] In the recent decision of the Supreme Court of the United Kingdom in Kennedy v Cordia (Services) LLP [2016] UKSC 6 Lord Reed and Lord Hodge (with whom Lady Hale, Lord Wilson and Lord Toulson agreed) remarked at [44] that the admissibility of expert evidence is dependent on there being a reliable body of knowledge or experience to underpin the expert’s evidence. The weight accorded to an expert opinion must be dependent upon the factual basis provided for that opinion. I cannot give any weight to the opinion of Dr Sharwood that the disc disease was caused by the hatch incident.

    [40] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [64].

19. For these reasons I cannot be satisfied that the applicant suffered a disease under s 5A(1)(a) of the Act or an injury under s 5A(1)(b) of the Act. While the applicant does not bear any onus of proof,[41] I am not satisfied on the balance of probabilities that the hatch incident contributed to the applicant’s cervical or thoracic conditions at all, let alone to a degree that is substantially more than material. Therefore, the respondent is not liable under s 14 of the Act to pay compensation to the applicant for her thoracic or a cervical condition.

    [41] Cf Sullivan v Civil Aviation Safety Australia Authority (2014) 226 FCR 555 at [115] per Flick and Perry JJ.

    CONCLUSION

20. The applicant is not entitled to compensation under s 14 of the Act for a thoracic or a cervical condition arising out of the hatch incident which occurred on 16 November 2001.

    DECISION

21. I affirm the decision under review.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD.

.........................[sgd].......................................

Associate

Dated 16 March 2016

Date of hearing

13 October 2015

Solicitors for the Applicant

Ms S Baker, RSL Redcliffe Sub-Branch Inc

Solicitors for the Respondent

Counsel for the Respondent

Mr A Burgess, Sparke Helmore

Mr M Hawker