Schmidt-Lee and Military Rehabilitation and Compensation Commission

[2008] AATA 621

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 621

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1621

VETERANS' APPEALS DIVISION		)
Re		PAUL SCHMIDT-LEE

Applicant

And MILITARY REHABILITAION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date16 July 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...................[Sgd]...........................

Deputy President

CATCHWORDS

COMPENSATION – headache condition – question of whether condition arose as a result of a neck injury suffered in the course of service – no relationship between the headaches and neck injury – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

16 July 2008 Deputy President P E Hack SC    

1.This is an application by Paul Schmidt-Lee to review a decision of the respondent, the Military Rehabilitation and Compensation Commission, to refuse liability to pay him compensation for a “headache condition”.

2.On 29 August 2006 the Commission accepted liability to pay Mr Schmidt-Lee compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for a neck injury[1] which occurred in the course of his service in the Australian Regular Army. Mr Schmidt-Lee requested that his “headache condition be included in the claim” but on 3 October 2006 the Commission determined that “the evidence has failed to establish that there is liability to pay compensation”. That determination was affirmed on re-consideration on 11 April 2007.

[1]Described as “uncovertebral joint degenerative change at the left C4/5 cervical vertebrae with associated moderately severe foraminal stenosis”.

3.The dispute is quite narrow. It is accepted that Mr Schmidt-Lee injured his neck in an incident in the gymnasium on his base and that he was engaged in service activities at the time. It is not in issue that he suffers from headaches. The dispute is over the connection between the incident in the gymnasium and the headaches. Mr Schmidt-Lee relies upon the evidence of Dr Scott Campbell, a neurosurgeon, to establish the connection between the two. The Commission relies upon the evidence of Dr Gregory Ohlrich and Dr Noel Saines, both consultant neurologists, to dispute that connection. 

4.Mr Schmidt-Lee is not able to say when the incident occurred beyond that it was in early 2004. He was playing basketball during an organized physical training session when his head collided with the hip of another player. He describes the collision as causing “immediate pain and suffering to my neck”. As I have said, the Commission has accepted liability with respect to the injury that resulted to Mr Schmidt-Lee’s neck. It is the question of his headaches which is in issue here.

5.Mr Schmidt-Lee’s statement refers to the occurrence and severity of his headaches increasing “shortly after” the incident in the gymnasium. In his oral evidence he spoke of first noticing headaches in “late 2004, 2005”. He said that in late 2004, that is, some months after the incident in the gymnasium, the headaches became severe enough for him to go and do something about them. That is consistent with the claim for compensation which he completed in November 2004. It makes no reference to headaches and I infer that he was not then affected by headaches that he attributed to his service. The first reference to headaches in a compensation context appears to have been in or about June 2005, when Mr Schmidt-Lee was seen by Dr Roy Saunders for the purposes of compiling a report to the Commission on a variety of ailments. That report contains the following:

“Mr Schmidt-Lee states that when his neck pain increases in severity, he will often suffer associated headaches. These headaches are initially occipital with a generalised headache extending over the whole of the scalp. This is associated with visual blurring and poor concentration. He notes that there is a reduction in range of motion associated with the headaches. He says there is no photophobia^[[2]].”

[2]        An abnormal visual intolerance of light.

6.There is a letter in the s 37 documents dated 12 May 2006 from the Commission to Mr Schmidt-Lee that refers to a “recent conversation” between him and one of the Commission’s officers about a “headache condition” and what needed to be done to have that condition included with the claim that had been made for a neck injury in February 2005. In a letter of 18 July 2006 Mr Schmidt-Lee referred to being in “no doubt” that there was a connection between his headaches and the neck condition.

7.Contrary to the evidence of Mr Schmidt-Lee there is a considerable history of him experiencing headaches similar in nature to those of which he now complains prior to the incident in the gymnasium. His annual health assessment, completed in March 2003, refers to “neck/headaches” amongst “current injuries”. Later that month he complained to the unit medical officer of problems with his neck and headaches up the side of his neck. He was referred to a physiotherapist who recorded a history of “tension headaches approx. every 2^nd day”.

8.These complaints continued. In early February 2004 he again complained to the unit medical officer of neck pain and headaches. I am unable to accept the submission of Ms Scott-McKenzie, counsel for Mr Schmidt-Lee, that this entry might be associated with the injury in the gymnasium. I infer from its context that it was a complaint of the same nature as that earlier made to the same medical officer. I find it inconceivable that the medical officer would not have recorded the mechanism of injury if Mr Schmidt-Lee had, on this occasion, presented after a collision with another soldier in the gymnasium. There is apparently no record of an attendance by Mr Schmidt-Lee on the medical officer following an incident of this nature.

9.Whilst the question of an association between the headaches and the neck injury falls to be determined on the basis of medical evidence, the worth of that evidence will depend upon the accuracy and reliability of the history provided. In that regard it seems to me to be significant that Dr Campbell, who saw Mr Schmidt-Lee in January 2007, referred to him having “noted the immediate onset of neck pain, bilateral shoulder pain and headaches”. So far as headaches are concerned, that, of course, is contrary to the contemporaneous records, the history of the claim for compensation, the history recorded by Dr Saines and the oral evidence of Mr Schmidt-Lee. Dr Campbell referred to the significance of a close temporal association between the onset of headaches and the injury. When asked to explain that significance he said:

“If something such as headaches occur within 24 hours of an injury that would make it … there would be a strong causal link. After 24 hours the link does decrease each day so that after about 2 or 3 weeks there will be almost no link at all.”

10.Whilst Dr Campbell subsequently spoke of the potential of delayed onset headaches I find the suggestion that that could have occurred in this case to be unconvincing. The evidence here satisfies me that there was no complaint for some months after the incident in the gymnasium. Moreover, it is apparent from the medical records that Mr Schmidt-Lee’s history of headaches in the period prior to the gymnasium incident was greater than that recounted to him. In these circumstances it would seem to me that the foundation of Dr Campbell’s opinion is unsound because he proceeded on the basis that there was an immediate onset of headaches and because he was unaware of a considerable history of similar headaches prior to the incident in the gymnasium. I do not intend any criticism of Dr Campbell in saying that; the reliability of the opinion of any medical practitioner is dependant upon the reliability of the history given.  

11.In that context I should add that I have considerable concerns about the reliability of Mr Schmidt-Lee’s evidence about his symptoms. I consider that his evidence is, to a very great extent, affected by ex post facto rationalization where, perhaps unconsciously and understandably, he has sought to attribute his symptoms to the event in the gymnasium. The history of complaints regarding photophobia provides an example. His evidence that he did not suffer from photophobia was inconsistent with the history given to Dr Ohlrich and Dr Campbell, although consistent with his account to Dr Saunders and Dr Saines. I consider it preferable to have regard to contemporaneous accounts of symptoms rather than those now given. 

12.The opinions of Dr Ohlrich and Dr Saines do appear to be informed by a history that accords with contemporaneous accounts of symptoms. Each of them reaches the conclusion that the headaches are unrelated to the neck injury. Both are neurologists with vast experience.

13.Dr Ohlrich expressed his conclusion in this way:

“The description of the headaches is consistent with a combination of migraine and tension headaches. I consider that the cause of these headaches is constitutional, developmental and genetic. I do not consider that there is any relationship between the headaches and any neck injury. In particular I do not consider that there is any relationship between Mr Schmidt-Lee’s headaches and the alleged neck injury on 04 February 2004. I do not consider that there is any relationship between his headaches and his military service.”

14.Dr Saines said this:

“The headaches are of muscle contraction/migraine type, a common basis for headaches in the general community. He had suffered headaches prior to the basketball incident which I believe were similar in type. The distribution of this form of headache may change during a patient’s life. I cannot link the headaches to his cervical injury or to the cervical degenerative disease.”

15.Ms Scott-McKenzie submitted that I ought not accept the evidence of either Dr Ohlrich or Dr Saines on the basis that they were, in effect, unyielding and dogmatic in giving evidence. I must say that that was not my impression. I regarded them both as careful and thoughtful witnesses whose evidence was logical and well-founded.

16.Given my concerns about the factual basis of the opinion of Dr Campbell, and my preference for the opinions of Dr Ohlrich and Dr Saines, I am well short of being satisfied that there is any relationship between Mr Schmidt-Lee’s headaches and his neck injury, and thus I am not satisfied that the headaches constitute an injury as that term is defined in the SRC Act.

17.It follows that I would affirm the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .............................[Sgd]...................................................
  Associate: Jacqueline Woods

Dates of Hearing  3-4 July 2008
Date of Decision  16 July 2008
Counsel for the Applicant         Ms S Scott-McKenzie
Solicitors for the Applicant        Slater and Gordon Lawyers
Counsel for the Respondent     Mr C Clark
Solicitors for the Respondent    DLA Phillips Fox