Ransley and Comcare
[2001] AATA 571
•21 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 571
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos T1999/73 and
) T1999/105
GENERAL ADMINISTRATIVE DIVISION )
Re COLIN DOUGLAS RANSLEY
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr C P Webster (Senior Member)
Date21 June 2001
PlaceHobart
Decision The Tribunal affirms the two decisions under review.
[Sgd C P Webster]
Senior Member
CATCHWORDS
Compensation – whether applicant's cerebro-vascular accident contributed or caused by excessive salt intake commencing with Navy service – whether back impairment contributed or caused by Navy service.
REASONS FOR DECISION
21 June 2001 Mr C P Webster (Senior Member)
Issues
Colin Douglas Ransley ("the applicant") seeks review of two decisions of Comcare ("the respondent") namely:
(a)a decision of a delegate of the respondent of 3 July 1998 and affirmed by an authorised review officer on 5 May 1999 that cerebro-vascular accident which occurred on 4 May 1993 was not related to the applicant's previous employment in the Royal Australian Navy; and
(b)a decision of a delegate of the respondent of 13 January 1999 and affirmed by an authorised review officer on 14 June 1999, not to pay a lump sum payment in respect of a permanent impairment to his back, being an injury suffered by the applicant in his employment with the Royal Australian Navy ("the Navy") in 1963 and 1967, which was made worse as a result of a medical operation on 4 May 1994.
In relation to the applicant's claim that he suffered a cerebro-vascular accident, the applicant argues that prior to his Navy service he did not use salt, but that while on service he was required to take salt tablets and use additional salt in his food. This habit or addiction to salt continued after his service and caused hypertension which resulted in a cerebro-vascular accident.
In relation to the other claim, it was argued by the respondent's delegate that as a result of the accident during service in 1963 and 1967 the applicant suffered an injury, but the applicant's present back condition and impairment was not the result of the accidents during the applicant's employment with the Navy. In any event if such a condition was caused by his employment in the Navy, his condition had become permanent prior to 1 December 1988, being the date upon which the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act") came into effect and therefore the applicant's entitlements are to be paid in accordance with either the 1930 or 1971 Acts, under which no lump sum was payable in respect of a back condition.
The EvidenceThe applicant gave oral evidence in person. He gave the following evidence:
(a)He enlisted in the Navy on 18 January 1960 and was discharged on 18 January 1972, and that during his time in the Navy he worked mainly as a steward or a cook.
(b)In 1961 he served on HMAS Vendetta in tropical waters. During this service the applicant, and other crew members, were provided with salt tablets on a daily basis. They were told each morning to take the salt tablets. He took on average of 8 salt tablets each day.
(c)Prior to his service the applicant had never taken salt tablets, and did not otherwise use salt when it was already in the meal.
(d)During his time in the Navy he saw salt and pepper shakers for the first time. He began to liberally use salt on his meals. He never had a meal on which he didn't sprinkle with 2 – 3 teaspoonsful of salt whilst in the Navy.
(e)He developed the habit of eating a slices of bread sprinkled with salt and pepper.
(f)On the HMAS Vendetta, the applicant spent a total of 16 months in the tropics between 1961 and 1963. He spent further time in the tropics on other ships.
(g)When the applicant returned from the tropics, he continued to liberally use salt on his meals, and eating pepper and salt sandwiches. This salt consumption continued until 1993.
(h)On 29 July 1963, he slipped on stairs on HMAS Vendetta and fell on his back and suffered a strain to his back.
After a few days of ultra-ray treatment he returned to duty, but from time to time experienced pain in his back when playing sport.
(j)On 12 September 1967, he slipped on stairs while serving on HMAS Kuttabul and experienced lower back pain for one week. He was hospitalised and had bed rest and traction.
(k)In March 1969, the applicant again experienced lower back pain and was placed on light duties for two weeks.
(l)After his discharge, he was able to engage in full-time employment mainly as a barman. He had the odd day off work due to back pain until 1993.
(m)In 1993, the applicant had a cerebro-vascular accident. After that time he suffered left sided sciatica for 3 months and on 4 May 1994 an orthopaedic surgeon operated on his back. After the surgery he suffered left sided foot drop necessitating the use of foot drop splints.
(n)The applicant described in detail his limitations caused by the cerebro-vascular accident and the operation upon his back.
Under cross-examination the applicant agreed that he had had no treatment after leaving service for his back injuries until December 1987 following an incident at work when unloading a freezer.
He agreed that the salt tablets had no taste and had no impact on the taste of food that he ate.
He agreed that after finishing with the Navy he worked in employment which required him to take a cut lunch to work which he purchased on his way to work. On these occasions he did not add salt to the sandwiches, but if he made sandwiches at home he would add salt (except when the sandwiches were peanut butter, vegemite or similar).
Mr. Maurice Lowe gave oral evidence. He served in the Navy from 1960 until 1969 and served with the applicant from 1961 to 1963. He used salt tablets but not extra salt on his food whilst serving in the tropics.
He stated that when he served in cool climates he did not use salt tablets and his salt intake dropped to the pre-service levels. He agreed that while serving in cool climates salt tablets and consumption of salt was optional.
Mrs. Elaine Ransley, the wife of the applicant gave oral evidence. She advised that she first met the applicant in 1973. She was aware that he complained of back problems from time to time, but rarely had time off work.
She advised that after the back injury in 1994, the applicant's mobility deteriorated to the extent that he had lost all sense of balance and could walk only with the aid of a walking frame.
Mr. Raymond Rundle former naval personnel gave similar evidence to that of Mr. Lowe.
Dr. Trevor Beard, a medical practitioner, gave oral evidence. He is a retired general practitioner, and since 1988 he has been working as a senior research fellow at the Menzies Centre, on the connection between salt and hypertension and other conditions attributable to a high salt intake.
His evidence was that consumption of salt was one of the factors which can raise blood pressure and that a consumption of greater than 6 grams per day would elevate blood pressure.
In his opinion the 3 heaped teaspoons of salt would contain between 10.8 and 16.2 grams. The effect of excessive salt consumption on any individual would vary greatly depending on the individual's genetic make-up.
He considered that consumption of salt was capable of being habit forming. The habit could however be broken relatively easily by the reduction of salt intake over a 4 week period.
He considered that a person with high blood pressure is more likely to suffer a cerebro-vascular accident as the blood vessels can haemorrhage as a result of the high blood pressure.
Dr. Beard stated that the taking of salt tablets, alone, would not have given the applicant a taste for salt. The doctor agreed with the proposition that it was not inevitable that someone who consumed excessive salt would suffer a cerebro-vascular accident. He stated that there were many factors which could make someone susceptible to a cerebro-vascular accident such as lack of exercise; alcohol intake and salt intake; overweight; lack of potassium and most importantly of all genetic make-up.
Mr. Peter Clements, an orthopaedic surgeon, gave evidence by telephone. His evidence was as follows:
(a)That on 30 April 1994, Mr. Clements operated upon the applicant to decompress the posterior spinal cord from L/3 down to the sacrum, and at the same time removed protruding portions of calcified discs at L4/5 and L5/S1.
(b)Prior to that operation the applicant had back pain particularly left sided leg pain i.e. sciatica. Following the surgery the sciatica pain was removed, but the applicant was left with a neurological weakness involving a foot problem at his left ankle.
(c)He considered that the lower back problem was contributed to by the fall experienced by the applicant while serving on HMAS Vendetta.
(d)He considered that the applicant's problem with the leg were as the result of the operation, rather than as a result of the cerebro-vascular accident.
(e)He considered that the applicant's problems with his leg were likely to remain permanent.
During cross-examination Mr. Clements conceded that he was unaware that the applicant had since his Navy service worked as a barman. He agreed that it would be unusual for a person with back pain not to consult a medical practitioner in respect of that back pain for 20 years.
He agreed that in 1994 the applicant "popped out a piece of disc from the L4/5 disc presumably some three to four months ago and that this has been the instrument that has caused the exacerbation of symptoms".
Mr. Clements agreed that the incident involving a freezer in December 1987 was probably responsible for the applicant's complaint of sciatica.
Dr. Anthony Chambers, a general practitioner, gave evidence on behalf of the applicant by telephone. His evidence was as follows:-
(a)He had been the applicant's general practitioner since September 1992 and had treated the applicant for high blood pressure.
(b)He considered that there was a high likelihood of the applicant's cerebro-vascular accident being caused by the applicant's high blood pressure.
(c)He had not been advised by the applicant or the applicant's wife of any dramatic salt intake by the applicant prior to his discussion with the applicant's counsel the day before he gave evidence. If he had been so advised he would have counselled the applicant against a high salt intake.
The Respondent's Evidence
Dr. John Freeman, a physician, gave evidence in person. He adopted his written report of 23 May 2000 and 6 June 2000.
In his report of 23 May 2000, Dr. Freeman stated that "I note the tables you sent me and from table 9.5, I would have assessed Mr. Ransley's disability prior to the operation as being between 0 and 10% and subsequent to the operation to be greater than 30%."
Regarding hypertension, Dr. Freeman stated in that report "The relationship of salt and hypertension is accepted but there is debate about the significance of salt intake and hypertension. Some would hold that it only plays a small part in the induction of hypertension and that there are many other factors including genetic make up which are much more important."
Dr. Freeman stated that if the applicant had not seen a doctor in relation to back pain for 17 years after allegedly injuring his back during service with the Navy, it would be much less likely that he had in fact injured his back during his employment with the Navy. He considered that the trauma in 1987 i.e. the freezer incident was likely to be the cause of the applicant's back problem.
Lieutenant Commander Ricky Burridge of the Royal Australian Navy gave evidence by telephone. His evidence was as follows:
(a) That he is the senior catering officer in the Navy.
(b)That many cooks were taught not to put on excessive amount of salt in food prepared by them.
(c)That if a cook had put excessive salt in the food it would have led to complaints by the crew and the cook would have been counselled.
Discussion of Evidence and Findings of Fact
The Tribunal accepts that the applicant is a generally honest witness, however the Tribunal considered that he was a poor historian (which is understandable given the effluxion of time), and that he was inclined to exaggerate.
The Tribunal notes in this regard that the applicant mistakenly advised the Tribunal that following an injury whilst working as a barman following his discharge from the Navy he was paid worker's compensation under State worker's compensation legislation. This evidence was later found to be incorrect. This evidence, which could have been fatal to part of the applicant's case, shows that his memory is unreliable.
The applicant's evidence that following his discharge from the Navy he liberally used salt in his food including eating salt and pepper sandwiches is not supported by the evidence of his wife, nor had the applicant even told his treating general practitioner, Dr. Chambers (or seemingly Dr. Ayling whose notes were tendered) that he had liberally used salt to the extent that he had advised the Tribunal.
The applicant's evidence that he purchased sandwiches pre-wrapped, but did not add salt to these sandwiches, is also inconsistent with his evidence that he added salt to all his food.
The Tribunal does not believe that there are any substantial differences in the evidence of Dr. Beard and Dr. Freeman. Both doctors consider that hypertension is a possible factor in the development of a cerebro-vascular accident.
Both doctors consider that there are a number of factors which can contribute to a person having high blood pressure including lack of exercise; alcohol; high salt intake; lack of potassium; being overweight; and most importantly of all genetic make-up of the particular person.
Both doctors agree that high salt consumption is a possible cause or contribution to hypertension in the applicant's case.
The Tribunal makes the following findings of fact:
(a) The applicant was born on 17 January 1943.
(b) He enlisted in the Royal Australian Navy on 18 January 1960 and was discharged on 17 January 1972.
(c)During his period of service in the Navy he served in tropical waters where he was provided with salt tablets which he was encouraged to take.
(d)During his time in the Navy, the applicant liberally used salt in his food.
(e)On 29 July 1963, the applicant slipped on stairs on the HMAS Vendetta and suffered an injury to his back which incapacitated him for work for a few days.
(f)On 12 September 1967, he slipped on stairs while serving on another vessel. Following that accident he experienced low back pain for one week.
(g)In March 1969 the applicant again experienced lower back pain and was placed on light duties for two weeks.
(h)After his discharge from the Navy the applicant worked in full-time employment mainly as a barman.
The applicant did not have any further time off work due to back pain until 1993 when he injured his back when working as a barman.
(j)That between the time he was discharged from the Navy until his back injury while working as a barman he had not consulted a medical practitioner for any back complaint.
(k)In 1993 the applicant had a cerebro-vascular accident.
(l)That the applicant did not consume excessive salt after his discharge from the Navy .
Decision
The applicant's counsel (admittedly at the invitation of the Tribunal), argued that the Statement of Principles used in Veterans' rehabilitation matters could be relied on by the applicant to show a connection between high salt intake and a cerebro-vascular accident. The Tribunal does not accept this argument.
If the legislation had intended Statement of Principles, used under Veterans' rehabilitation legislation, to be used when determining entitlements under the various Commonwealth Workers' Compensation legislation it would have legislated to give effect to such intentions.
The two schemes are entirely separate.
The Tribunal is satisfied that the applicant's back injuries suffered in the course of his service in the Navy are not contributing factors to his present back impairment.
The Tribunal in reaching this conclusion was influenced by the fact that –
(a)The applicant had not had any time off work as a result of a back complaint from discharge from the Navy, until he suffered a injury at work as a barman in 1993.
(b)The applicant had not consulted a medical practitioner between his discharge from the Navy in 1972 and 1993 for any problems to his back.
(c)That the effects of the back injury suffered during the applicant's Navy service were of very short duration. That is the treatment and period of incapacity following those incidents were minimal.
(d)That there was a distinct accident or event that caused the plaintiff to seek medical treatment for his back in 1993.
The Tribunal does not accept the applicant's evidence that he consumed excessive salt after his discharge from the Navy.
There is no evidence from the applicant's treating doctors or his wife that the applicant consumed excessive amounts of salt.
There is also inconsistencies in the applicant's evidence that he invariably applied extra salt to his food.
The Tribunal being satisfied that the applicant did not consume excessive salt does not need to reach conclusion regarding the relationship generally between excessive salt intake and cerebro-vascular accident, but notes that the connection between the consumption of salt and high blood pressure is not precisely known and is affected by many factors.
The Tribunal is satisfied that there is no connection between the applicant cerebro-vascular accident and the applicant's employment in the Navy.
The Tribunal affirms the two decisions under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 20, 21,22 February 2001, 5 April 2001
Date of Decision 21 June 2001
Counsel for the Applicant Mr R M Webster
Counsel for the Respondent Mr M Castle (Dept. of Veterans' Affairs)
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