Sheppard and Comcare
[2014] AATA 157
•21 March 2014
[2014] AATA 157
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5391 & 2013/5378
Re
Jon Sheppard
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 21 March 2014 Place Canberra The decisions under review are affirmed.
.........................[sgd]...............................................
Mr S. Webb, Member
COMPENSATION – neck and pain syndrome injury claims – no frank injury – no objective evidence of neck pathology - soft tissue neck injury not established by probative evidence – back injury claim rejected – back symptoms not attributable to claimed neck injury - neck symptoms not significantly contributed to by employment - unreliable and inconsistent evidence – medical evidence reliant upon applicant’s unreliable account – theories of causation – possibility and plausibility not sufficient – employment contribution to neck ailments not established as significant - decisions affirmed.
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 7, 14
Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40
Bater v Bater [1950] 2 All ER 458
Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626
Jones v Dunkel (1959) 101 CLR 298
Mellor v Australian Postal Corporation [2009] FCA 504
Repatriation Commission v Smith (1987) 74 ALR 537Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
REASONS FOR DECISION
Mr S. Webb, Member
21 March 2014
Jon Sheppard claimed compensation for neck injuries and chronic pain he attributes to employment by the Attorney-General’s Department and, subsequently, by the Clean Energy Regulator. Comcare refused the claims by primary determination and on reconsideration. Mr Sheppard applied for review.
Confidentiality
In the course of proceedings, Mr Sheppard sought orders supressing his name from publication and protecting certain documents he filed from disclosure or publication. The documents related to Mr Sheppard’s employment by the Attorney-General’s Department. Some of the documents contained highly sensitive private information of individuals who are not in any way relevant to the present proceedings. In order to deal properly with the documents, I gave the Attorney-General’s Department opportunity to be heard about appropriate orders. Orders were duly made.
Mr Sheppard informed me that he intended to put on evidence in support of his request for non-publication of his name. This matter was held over to be determined at the hearing. Ultimately Mr Sheppard withdrew this aspect of his request for confidentiality orders.
Injury claims
The substantive issues for determination relate to the two compensation claims Mr Sheppard made in respect of neck injuries and chronic pain.
The first claim, dated 9 April 2012, relates to a “pain syndrome and cervical strain” affecting his “cervical spine (neck)” that occurred or was first noticed on 20 March 2008, when he first sought medical treatment from Mr Bloom, a physiotherapist[1]. Mr Sheppard was employed by the Attorney-General’s Department at that time.
[1] T68 folio 248.
In the claim, Mr Sheppard set out the following causal factors –
24. What were you doing at the time you were injured or contracted your illness?
7.
Working
Excessive frequency neck rotation and underlying weakness of neck ligaments. Significant causative factors listed below at question 25.
Acceleration of injury with inadequate healing time and including delayed diagnosis.
25. What action, exposure or event happened to cause your injury or illness?
* Excessive workloads (March 2008) & duration in data entry duties with inadequate breaks
*Inadequate staffing.
*Employer’s failure to provide or follow up routine ergonomic accommodations at December 2007 and August 2009.
*Inadequate supervision.
*Excessive number of data entry fields and transcription duties with lack of variety in tasks. Due to inadequate staffing and faulty database. Resulting in high frequency neck rotations.
*Excessive keyboarding and extension forward of shoulder girdle and neck – probably at the incorrect angle and elevation and for long periods. Excessive posture.*
*Lack of adequate healing time, specific treatment or any early intervention or diagnosis.
In sum: a fully preventable series of events and occurrences, that has been mismanaged while festering an increasing pattern of impairment to the same specific duties that caused the injury in the first place. A clear injury acceleration resulting in incapacity.
26. What actually injured you, or made you ill?
The specific duties of data entry and transcription and the specific manner in which that were performed. Excessive frequency neck rotation.
On 14 August 2012 Comcare rejected the claim[2]. This determination was subsequently affirmed in a reconsideration decision, dated 14 November 2012[3]. Mr Sheppard applied for review – application 2012/5391.
[2] T72, folios 274 – 284.
[3] T80, folios 303 – 307.
The second claim is dated 26 April 2013. It relates to “pain syndrome cervical strain/sprain” affecting Mr Sheppard’s “neck” that is said to have occurred or was first noticed –
Late October/Early November 2011 – intensification of symptoms upon left-down neck movement.
i.e. Dizziness, headache, vision changes, neck stiffness, fatigue & disorientation. Some sleeping difficulties. Behavioural – avoidance of intensity stimuli, people and light. Absented myself from Melbourne Cup social gathering.[4]
[4] ST 19 folio 52.
In response to the question ‘Have you ever had a similar symptom, injury, illness, work-related or otherwise?’, Mr Sheppard answered –
Initial claim re: DEC/2007 still pending (RSI-Neck) to include ‘acceleration’. Nov 2011 – change to pathology as an ‘exacerbation’.
*Can you please prioritize processing my claim? I think it’s pretty obvious I will be unable to work again until this matter is dealt and rehabilitation completed. Since there’s already a six year delay I think that’s fair.[5]
[5] Ibid, folio 53.
Mr Sheppard was employed by the Clean Energy Regulator in or about October or November 2011.
In the claim he set out the following –
24. What were you doing at the time you were injured or contracted your illness?
13.
Working – NGER Registration Applications
Neck rotation / stretch.
Reading &/or Data transcription
A further incident was noticed in File Compactus – Nov/Dec 2011. When putting away and looking for files (re extended neck left-down movement in a confined area).
25. What action, exposure or event happened to cause your injury or illness?
* Failure to use appropriate document holder
*Left-down neck motion / static inclination of neck to the left-down position / reading left side (?allodynia).
Assessing officer: please consider my cigarette smoking history as a mitigating ‘treatment’ at Nov 2011/June 2012. That pattern is consistent since original injury date 2007 (1072289/03). Impairment was noted however on 20 July 2012 by a supervisor, in my work undertaken in early July 2012, itself involving the very same cases worked on in June 2012. This intersects with the reading component and cessation of smoking.
Can you please assess the entire continuous period since initial injury 2007? If you cannot, then please use this form to consider numerous separate claims, for each period I have been exposed to data entry / transcription duties, since that date. I will be asking my solicitor/AAT to examine the entire period at their discretion and to save you a lot of time/work.
The key initial ongoing symptom is stiffness of the neck. The only occasion the injury has been treated effectively appears to be with bedrest, aversion from neck rotation (down-lefties) and routine breaks (i.e. smoking). Obviously the first treatment is not a feasible option. Note also my GP’s report of 2011. Since Nov 2011 there has been ongoing treatment.
The injury was not formally claimed at Nov 2011 because; I was on a waiting list (undiagnosed), the medicos deferred to Drs Eaton/ Speldewinde (a self referred), that is why my GP did not mention and I believe it was well managed by the relevant manager/myself at the time. i.e. TENS, smoking, pain meds.
26. What actually injured you, or made you ill?
- Data entry / left-down neck rotation (Nov 2011).
- Comcare’s delay.
- Stopped smoking.
On 23 August 2013, Comcare decided to reject the claim[6]. This determination was reconsidered and affirmed on 1 October 2013[7]. Mr Sheppard applied for review – application 2013/5378.
[6] ST32.
[7] ST36, folios 111 – 118.
I note in passing that Mr Sheppard previously claimed compensation for an injury to his back that he attributed to his employment. The claim was rejected by Comcare and, following reconsideration, Mr Sheppard applied for review by the Tribunal. The application did not proceed to hearing as Mr Sheppard withdrew, leaving Comcare’s rejection of his claim in place. There is no claim for a back injury on foot in these proceedings, and the Tribunal does not have jurisdiction to consider any such claim.
Issues
The issues for determination are whether, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), Comcare is liable to pay Mr Sheppard compensation for an injury to his cervical spine or neck in the period leading up to 20 March 2008, in the form of a sprain or a pain syndrome, and for a similar injury in or about October or November 2011, in the form of a neck strain or sprain, or a pain syndrome in his neck. This requires consideration of the meaning of ‘ailment’, ‘aggravation’ and ‘impairment’ under s 4, and the meaning of ‘disease’ under s 5B, particularly whether Mr Sheppard’s employment contributed to a significant degree to the onset or aggravation of an ailment. It is also necessary to determine whether Mr Sheppard suffered a physical injury for the purposes of s 5A.
This is a curious case that raises issues concerning the existence of an injury or an ailment that may have been caused, contributed to or aggravated by Mr Sheppard’s employment in Commonwealth agencies in 2008 and 2011. It is curious because, as will appear, each claim involves retrospective allegations of symptoms and chronic pain in Mr Sheppard’s neck that he did not recognise or report as an injury to his neck at the time, and because, by his own account, he spent a long period of time ‘investigating’ the nature of the injuries he now claims.
Mr Sheppard has put on voluminous materials, including documents concerning his duties and work circumstances, as well as his workload in his former employments[8]. He informed me that analysis of these documents and data supports the conclusion he has reached, and the central thesis he presses in these proceedings – that repetitive ‘down-left’ neck rotations (“lefties”) with incorrect posture over long periods while using a computer at his desk at work, caused or aggravated symptoms in his neck in February or March 2008 and in October or November 2011. He maintains, furthermore, that in each case the symptoms in his neck were not treated, and they were prolonged or exacerbated by continuing work duties, which caused them to become chronic and entrenched, in the form of a chronic pain syndrome affecting his neck and shoulder girdles.
[8] See Exhibits 29, 30 and 34, for example.
In Mr Sheppard’s submission, the causal hypotheses he advances and the diagnosis of a soft tissue neck injury with referred pain symptomatology resulting in a chronic pain syndrome are supported, to varying degrees, by evidence of doctors who have treated him over an extended period and who have examined him for medico-legal purposes, including Dr Madden and Dr Curtotti (general practitioners), Dr McGrath (musculoskeletal and occupational physician), Dr Toh (psychiatrist), Dr Eaton (occupational physician), Dr Speldewinde (consultant in rehabilitation, pain and musculoskeletal medicine) and Dr Bodel (orthopaedic surgeon).
He told me that after years of investigation he has identified and clarified the nature of the condition he suffers, which he is presently claiming as an injury arising from his former employment by the Attorney-General’s Department and the Clean Energy Regulator. In his submission, this investigatory process involved extensive inquiry and interaction with doctors, raising and testing possible causes and explanations, and a substantial process of educating himself about his condition. In this endeavour, he says that he was encouraged by his treating doctors, and by Dr Eaton in particular, to better understand his symptoms and the pain syndrome affecting his cervico-brachial region.
Mr Sheppard presses each claim on a number of bases, both as a frank injury and as an ailment, or an aggravation of an ailment, to which his employment contributed to a significant degree.
Credit
Before addressing these issues, it is desirable, first, to deal with issues of credit, particularly concerning the reliability of evidence placed before the Tribunal.
The central plank on which each claim is raised is Mr Sheppard’s account of neck pain and related symptoms, such as stiffness, each of which has a subjective character. It is no surprise in a case of this kind that the reliability of Mr Sheppard’s account is in question. And it is convenient to deal with this issue first.
Mr Sheppard told me that he suffers from an intellectual disability that affects his concentration. This, he says, is a feature of a psychiatric disorder diagnosed by his treating psychiatrists, Dr Toh and previously by Dr Tym, as he then was. Even though I did not observe Mr Sheppard to experience any difficulty whatsoever with his concentration or with his ability to follow and actively engage in the hearing while representing himself over three days, giving evidence, examining witnesses and making submissions, I accept that he has been diagnosed with a psychiatric disorder and that this may affect his intellectual function from time to time, as he contends.
If that is correct, there is a question about the extent to which this functional impairment affects the quality and content of accounts he has given of neck symptoms (or the apparent absence of them), including the histories he has provided doctors who have examined and treated him, as well as his evidence in these proceedings. It may go some way to explaining the stark inconsistencies and contradictions in his account over time and in his evidence before me, as put to him during the hearing.
When addressing questions concerning the absence of any medical record of him complaining about neck symptoms from 2008 to 2011, Mr Sheppard raised a number of conflicting submissions. On the one hand, he submitted that he did complain of neck symptoms to medical professionals who treated him from 2008 to 2011, including Dr Curtotti, Dr McGrath and Mr Bloom, but that the neck symptoms of which he complained were not properly or accurately recorded. On the other hand, Mr Sheppard argued that his neck symptoms were overshadowed, masked or mitigated by other factors - his psychiatric disorder and anxiety overshadowed his experience of neck pain - he was primarily concerned with psychiatric symptoms such as anxiety, rather than any symptoms in his neck; the medications he was taking masked symptoms in his neck; and activities in which he engaged, such as playing computer games and smoking, mitigated symptoms in his neck. He maintains that these factors affected his experience of neck symptoms to the extent that he may not have raised or complained sufficiently or precisely about the symptoms that he says afflicted him when he was examined or treated by doctors from February 2008 to November 2011.
It appears that Mr Sheppard consulted a number of medical practitioners over time, and he now maintains that discontinuity in such medical consultations or in medical treatment he obtained may, in some way that is not entirely clear, explain why he did not expressly complain of a neck injury over this period.
Mr Sheppard also submitted that he did not properly understand the nature of the symptoms he was experiencing. He maintains that there is a scale, running from discomfort to extreme pain, and on this scale he may have experienced stiffness and discomfort in his neck that he did not report as pain or as an injury. He suggests that he may not have understood that pain in his back, in his interscapula region, or in his shoulder, was referred from or attributable to an injury to his neck. He also maintains that he may have conflated symptoms in his neck and back when complaining of symptoms in his upper back. He posits these as reasonable explanations why he may not have referred to neck problems, expressly, when consulting medical professionals from 2008 to 2011.
There are several difficulties with these submissions.
Mr Sheppard’s alleged difficulty with concentration has not impeded his ability to ‘investigate’ the condition he now claims as an injury over a number of years. It has not impeded him from investigating his health condition and making related compensation claims, or from preparing numerous written materials setting out his ‘strategic thinking’ about his alleged injuries, including complex medical and legal references. Mr Sheppard strikes me as a person who has maintained a strong interest in his health over several years, and who has approached his ‘investigation’ of conditions he may suffer with great particularity, tenacity and attention to detail. The documents he has placed before the Tribunal are clear evidence of this. Furthermore, it is not apparent that his alleged intellectual disability impeded him from obtaining employment in different government agencies since 2008. Why it would operate to cause him to omit complaints of alleged neck symptoms when seeking medical treatment from time to time is not clear.
The alleged cognitive impairment and other allegedly masking or mitigating factors did not impede Mr Sheppard from informing his treating doctors about symptoms in his back, or about symptoms affecting other parts of his body – see notes and reports of Dr McGrath, Dr Curtotti, Dr Madden and Mr Bloom. Mr Sheppard’s assertion that other factors, such as taking narcotic analgesic medications, playing computer games and smoking, masked or mitigated his neck symptoms is far from persuasive. If this is correct, the masking or mitigating effect could reasonably be expected to apply equally to other symptoms about which he complained at the time the alleged masking or mitigating factors applied.
Furthermore, Mr Sheppard’s evidence and the submissions he made concerning masking or mitigating factors, such as taking pharmacological medications, including stimulants and narcotic analgesics, or playing computer games, or smoking, raise possibilities and hypotheses that may draw some support from the evidence of Dr Curtotti, Dr Eaton, Dr McGrath and Dr Bodel. But the medical evidence does not raise these possibilities to a higher level of probability. Why Mr Sheppard’s alleged cognitive impairment, or these other factors, would operate in a manner that caused him to omit references to neck symptoms, alone, has not been satisfactorily explained.
I do not accept Mr Sheppard’s assertion that he conflated neck and back symptoms when consulting medical practitioners from 2008 to 2011. The evidence of Dr Madden (in documentary form), Dr McGrath and Dr Curtotti does not support Mr Sheppard’s assertion. Dr McGrath, for example, gave evidence that his clinical notes clearly record Mr Sheppard complaining of symptoms in his back, in the inter-scapula region, and that he did not complain of neck symptoms in 2008. Dr Curtotti gave evidence that in October 2011 Mr Sheppard asked her to provide a medical certificate attributing incapacity for work to a back problem, but she refused to do so as her clinical notes did not record that Mr Sheppard had complained of a back problem or a problem in his neck at that time.
While I accept that Mr Sheppard suffers from a psychiatric disorder and anxiety, and I accept that he truly believes the explanations he has given about why he may have omitted or failed to raise with his treating doctors the neck symptoms he now alleges from 2008 to November 2011, his explanations are simply not credible. Mr Sheppard’s suggestions that he did not know that he was suffering from neck pain, or that it was latent, or that it was ‘discomfort’ and not ‘pain’, or that he experienced neck pain in other parts of his body, or that symptoms in other parts of his body were referred from or attributable to an injury to his neck, is no more than retrospective hypothesising. Positing hypothetical explanations of these kinds in his evidence may be convenient for the purposes of supporting the compensation claims he is pressing, but his evidence on these points is not consistent, and the explanations are far from persuasive or compelling. I do not accept Mr Sheppard’s explanation that he did not understand the difference between his neck and other parts of his body. Asserting that his complaints of thoracic interscapular back pain, lumbar pain or shoulder pain were, in fact, complaints of neck pain may be convenient to support a theory of causation, but it is not credible. To my mind, it is inconceivable that a person who claims to have suffered chronic neck pain from March 2008 would fail or omit to tell his treating medical professionals about this when seeking treatment, when he was plainly telling them about other complaints of a physical nature.
Mr Sheppard says that he has conducted ‘investigations’ to better understand his condition and to build a case for a compensable injury that is medically supported and legally sustainable. But in my assessment, by doing this he has constructed a case involving plausible theories and narratives of his own creation, populated by doctors who accept him as credible and who rely on the accounts he has given as true. It is only on close examination of the documentary records that critical flaws in the case Mr Sheppard has built can be seen.
Comcare asserts that Mr Sheppard has sought out doctors to test theories that may support his case, and that he has attempted to manipulate their assessments or to cajole them and Comcare into supporting his theories. There is some evidence to support this[9].
[9] See T48, T55, ST 28 and Exhibits 4, 5, 6, 7, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25 and 29 at ‘Z60’ for example.
Nonetheless, when Mr Sheppard asked Dr Bodel, Dr Eaton and Dr Curtotti whether he was feigning symptoms, each agreed that he was not and accepted his description of symptoms as real.
This notwithstanding, I am satisfied that Mr Sheppard’s evidence is not reliable. I am also satisfied that the accounts he has given medical professionals over time are not reliable. This does not mean that Mr Sheppard deliberately lied in his evidence or set out to deceive doctors he consulted. It appears to me that Mr Sheppard firmly believes the theory of cause and effect he has settled upon in the light of Dr Eaton’s diagnosis of a cervico-brachial pain syndrome and Dr Speldewinde’s diagnosis of a cervical postural strain. The difficulty for Mr Sheppard is that when records of past events do not fit his theory, he has attempted to dress them up, or construe them in tortuous ways, to conform to the case he now presses for compensation.
I will not accept Mr Sheppard’s evidence on controversial points without independent corroboration.
Neck injury
Mr Sheppard says that he suffered a soft tissue injury to his neck as a result of the repetitive data entry and letter-writing duties he undertook in his employment by the Attorney-General’s Department in the period leading up to 20 March 2008. I note the statements and histories Mr Sheppard has produced over time[10].
[10] See T6, T8, and Exhibits 12, 26 and 27, for example.
Mr Sheppard was examined by Dr Brooder, a neurologist, in 2003 in relation to possible neurological residuum following a mild decompression illness at the age of 15. Dr Brooder reported no “associated residuum or ongoing abnormality”[11]. The present evidence does not establish that this condition affected Mr Sheppard in or after 2008.
[11] Exhibit 30, ‘A74’.
It appears that Mr Sheppard injured his ribs and back in a fall in 2006 and he was involved in a rear end motor vehicle accident in February 2007, which, by his own account, caused him to experience temporary neck symptoms that, he says, cleared up after a couple of days. This is consistent with the contemporaneous records. By his account, he experienced stiffness in the back of his neck at the collar level in December 2007 which he attributes to his employment duties. He says that this developed into discomfort and pain in his neck which intensified in January to March 2008. At the time, Mr Sheppard says there was a spike in his workload due to database problems (requiring increased data entry into a temporary system) and low staffing levels (colleagues who took leave or who were performing higher duties were not promptly replaced).
The contemporaneous evidence does not support Mr Sheppard’s account. Treatment notes in Exhibit 30 at ‘A95’ record a fall in 2006 and a motor vehicle accident in 2007 and related soreness – “sore in Cx & knee”. There is no reference to any injury in 2008.
On 18 December 2007, Mr Seselja, OH&S and Rehabilitation Adviser, produced a Workstation Walkthrough Review Report[12], in which he recorded that Mr Sheppard had a “Past history of low back discomfort”[13]. There is no reference to neck pain or stiffness.
[12] T28.2.
[13] Ibid, at folio 87.
Mr Sheppard consulted Dr Madden on 4 February 2008. The Doctor did not refer to complaints of neck symptoms or a neck condition, but reported that –
[Mr Sheppard] has recurrent upper back pain caused by soft tissue inflammation.
His work which involves prolonged use of a keyboard can aggravate the pain.
Management consists of analgesic and anti-inflammatory medication as well as an exercise program.[14]
[14] T4 folio 10; T29 folio 104 refers.
This evidence does not support Mr Sheppard’s assertion and Dr Bodel’s retrospective report of a soft tissue injury to Mr Sheppard’s neck at this time.
Mr Sheppard’s graphic representation of his letter writing workload shows a spike in the number of letters he prepared in March 2008[15]. Without detailed evidence concerning the nature of the tasks involved and the time required to prepare such letters, it is difficult to evaluate Mr Sheppard’s actual workload in the light of evidence that his hours of work did not change significantly from late 2007 to March 2008[16]. I note the extensive documents Mr Sheppard tendered in Exhibits 29 and 30. These support the proposition that there were changes in Mr Sheppard’s employment circumstances that may have affected his workload, and that there were issues with Mr Sheppard’s performance. Even if Mr Sheppard’s analysis is correct and he prepared more letters within his standard work hours than previously, necessitating increased frequency of hand and arm movements and neck rotations, or “lefties”, as he alleges, it is quite plain that the spike in letter-writing he described graphically occurred after his complaint of back symptoms to Dr Madden on 4 February 2008.
[15] See graphical data plot at T37 folio 136.
[16] See T49.
It appears that Mr Sheppard consulted Dr Madden just before he departed on leave for five weeks, holidaying in Europe. Mr Sheppard’s evidence is that his symptoms did not abate or diminish in any degree while he was absent from work. He told me that travelling, and long flights in particular, may have prolonged or exacerbated his symptoms, such that they were present when he returned to work on 5 March 2008. By his own account, following his return to work he experienced “a significant increase in back pain and noted a visual disturbance”[17]. In this same account, Mr Sheppard states that –
During April 2008 I consulted a physiotherapist and implemented an exercise program that included stretches, exercise and lumbar support. This appeared to resolve the pain by the end of April 2008.
I was still experiencing ocular headaches off and apparent vision disturbance. So I consulted an optometrist who prescribed spectacles in mid-May 2008. This appeared to help. I continued to experience ocular headaches and blurry vision.
[17] T6 folio 12.
This evidence does not support the existence of a neck injury in March 2008.
On 20 March 2008, Mr Sheppard consulted Mr Bloom, a physiotherapist[18]. Mr Bloom reported –
[Mr Sheppard] stated that he had noted thoracic spine pain for approximately 2 months prior to his initial appointment [on 20 March 2008]. The pain intensity fluctuated over the preceding few months. He also stated that he found his work duties were difficult due to the pain… His pain was aggravated with sitting and as the day progressed.
…
Mr Sheppard appeared to have C6/7 and T4-7 dysfunction. On examination, left cervical spine rotation was limited to 75 degrees and right rotation to 60 degrees by left cervical spine stiffness. Thoracic rotation was limited to ¾ range bilaterally. On palpation there was pain and stiffness at T4-7.[19]
[18] Exhibit 30, ‘A77’ refers.
[19] T34 folio 120.
On this evidence, it is quite clear that Mr Sheppard complained of thoracic back pain, rather than neck symptoms, when he consulted Mr Bloom. But Mr Bloom’s evidence does not establish that Mr Sheppard sustained an injury to his neck in March 2008 or that his employment contributed to a significant degree to the loss of motion in his cervical spine. There is no radiological evidence of any structural damage or pathology in Mr Sheppard’s cervical spine[20]. Even though Mr Bloom recorded ‘dysfunction’ at the C6/7 level and some reduction in cervical spine rotation, on Dr McGrath’s evidence it is likely that the cause was located in the thoracic spine area, probably due to spinal inefficiency as a result of the minor underlying thoracic scoliosis and kyphosis he identified on radiological investigation. I prefer Dr McGrath’s evidence to that of Mr Bloom, as Dr McGrath is a medically qualified doctor with spinal expertise, whereas Mr Bloom is a physiotherapist with a different level of expertise.
[20] See T37 folio 135 and ST10 folio 26.
Dr Eaton and Dr Bodel gave evidence that it is possible for a neck injury to result in referred pain in the thoracic region, and that this may cause some minor compensatory spinal curvature. This possibility lies open in Mr Sheppard’s case, as Dr Chandran observed, but it is not established as a fact, on the balance of probabilities.
On 31 March, 7 April and 9 April 2008 Mr Sheppard consulted Dr Madden. The Doctor’s clinical notes on 31 March 2008 refer to X-ray investigations[21] and treatment with Mobic and Tramal. The clinical notes on 7 April 2008 refer to “x ray chest and thoracic spine” - Dr Madden recorded “Pain a little easier”[22]. If Mr Sheppard was suffering from a neck injury, as he now contends, it is reasonable to expect that Dr Madden would have referred him for an x-ray of his cervical spine, but no such investigation was sought or obtained at that time.
[21] See X-ray report at T37 folio 135.
[22] T29 folio 104.
Throughout the period from 2007 to 26 August 2010 Dr Madden’s notes do not refer to neck pain or neck symptoms of any kind. And there is no further record that is referrable to upper back pain after 9 April 2008.
On 25 July 2008 Mr Sheppard consulted Dr Curtotti. The Doctor’s clinical notes do not record any complaint of neck symptoms or of upper back pain[23]. Thereafter, Mr Sheppard consulted the Kingston Family Practice on 24 occasions in the period to 31 October 2011. The clinical records of these consultations do not reveal any complaint of neck symptoms, although Dr Curtotti’s notes on 10 November 2009 and on 12 September, 23 September, 17 October and 31 October 2011 refer to back injury claims –
[23] Exhibit 3 and Exhibit 31
Tuesday November 10 2009 11:09:54
Dr Ranjana Curtotti
History:
Here for check up. Comcare is disputing claim. Having lawyers involved. Comcare is disputing that performance appraisal was unfair. Developed eye symptoms and back pain. Having problems with performance in current work since September. Poor communication with staff. Not working at the moment. Psychiatrist given him time off
Monday September 12 2011 13:41:16
Dr Ranjana Curtotti
Actions:
Letter created – re. CERTIFICATE – large, free text.
Friday September 23 2011 12:43:40
Dr Ranjana Curtotti
History:
Report given by Dr McGrath. Involved in Comcare appeal re back pain caused by work. Explained report done.
Actions:
Letter created – re. CERTIFICATE – large, free text.
Monday October 17 2011 11:34:29
Dr Ranjana Curtotti
History:
Found job which is contract work. MVA scanned into file in Feb 2007. Trying to claim comcare for period off work. Trying to say back pain rather than adjustment disorder was reason for time off. I have no notes to support this. Did not c/o p=back pain when experienced stress at work
Actions:
Prescriptions printed:
ELOCON LOTION…
STILLNOX CR SR TABLET …
Monday October 31 2011 17:41:43
Dr Ranjana Curtotti
History:
Seen Dr Toh and McGrath and physio. Appears to have developed tolerance to the pain. Started new job which is going well. Wants report to comcare re back pain. But I cannot give him one as have no notes to back him up. C/o lower back pain after sitting long periods at work. Dr Toh considering starting endep for chronic pain.[24]
[24] Exhibit 3, page 7.
On 12 September 2011 Dr Curtotti reported[25] -
Mr Sheppard first consulted me about his back pain on 10 November 2009. He was complaining of blurred vision and back pain at that time… He has had similar episodes of back pain in the past.
A plain X-ray of the thoracic spine performed in 2007 was reported as normal. His pain was diagnosed at the time as due to a soft tissue inflammation in the upper back which was treated with physiotherapy, analgesics and anti-inflammatory medication. Mr Sheppard claims he first noticed this symptom in late 2006. He presented to his LMO in 2007 who organised an X-ray which showed no bony abnormality and diagnosed his condition as muscular inflammation, In 2008 his symptoms recurred and he saw h s LMO at the time Dr Madden who also treated his condition (notes included)
Since he saw me about the same condition his back symptoms seem to have resolved and he has not complained of it since.
…
I feel his pain was most likely due to work issues. He reported a heavy work load at the time he saw me in November 2009 and he was spending a lot of time on the keyboard. He denies any back pain prior to 2006.
His symptoms have currently resolved and he requires no further treatment.
[25] T31 folio 116.
In her oral evidence, Dr Curtotti agreed that it is possible Mr Sheppard experienced neck pain from 2008, and that a variety of factors may have masked or mitigated this symptomatology. Considering her evidence, I am satisfied that on 10 November 2009 Mr Sheppard provided Dr Curtotti a history of developing eye and back symptoms that he attributed to his previous employment. It is possible that he was complaining of back symptoms, or even neck symptoms in this consultation, but Dr Curtotti’s evidence is equivocal on this point. I think that it is more probable that Mr Sheppard was recounting a history in the context of discussing his compensation claims, rather than seeking treatment from Dr Curtotti for back or neck problems, and no treatment was provided.
On 11 November 2008, Mr Sheppard completed a Life Gate Client Record Form, in which he stated that he suffered from “Re-occurring back pain + tension…” which had been present for “12-18 months”[26]. The document does not contain any reference to neck pain or other neck symptoms.
[26] Exhibit 29, ‘Z43’.
An assessment of Mr Sheppard’s workstation was undertaken on 9 August 2009, and adjustments were recommended[27]. At this time, Mr Sheppard “reported a history of thoracic spinal pain which is currently well controlled with a prescribed home-based exercise program”[28]. Dr Toh’s clinical notes shed some further light on this history. The notes from 2009 and 2010 do not contain any discernable reference to neck symptoms or to upper back pain. The first reference to Mr Sheppard’s spine appears in the clinical notes on 8 September 2011[29] –
8.9.11
1. Spine – consulted Dr John McGrath. “Kyphosis” in the thoracic area from 2008.
- from abbattoir [sic] work lifting 30kg crates of meat 2 years ago.
…
[27] T28.2 at folios 100-101; Exhibit 30 at ‘A72’-‘A73’.
[28] Ibid, at folio 100.
[29] Exhibit 2, ‘K149’.
Dr Toh refers again to back pain in his clinical notes for 2 November 2011 and 10 January 2012 –
2.11.11 Seen Dr Curtotti re pain in back.
Yesterday, at compactus, sudden … back pain
Tension in forehead & pain behind eyes
Seen optometrist 4 glasses for short vision…
?trigeminal neuralgia – fluctuating “used to it”
Seen osteopath, acupuncture
…
Seen Dr McGrath (spine)
Had TENS machine on for sternomastoid
Sees self as having whiplash injury – moderate level pain
…
13.12.11 …
…
10.1.12 taking on GP’s advice 1mg Valium noct for neck ?spasm
Contract extended
Neck pain bothers a lot. Dr Mcgrath unsure what it is …
Stiff neck
Blurred vision + dizziness
…
Dr Toh was not called to give oral evidence.
On 25 August 2011, Dr McGrath reported that Mr Sheppard consulted him first on 23 December 2008. It appears that Mr Sheppard did not have a referral, but found Dr McGrath in the telephone directory. Dr McGrath reported that Mr Sheppard did not complain of a back problem, although the Doctor observed[30] -
As part of my thoroughness as a Spinal and Occupational Physician, he mentioned that he developed some upper back pains on return from his Christmas holidays in 2007. He consulted his General Practitioner and was given some physiotherapy which removed his discomfort. Around the same period he also developed blurry vision and saw an Optometrist who diagnosed a refractory error. As part of my first consultation, I ask patients to complete a Disability Questionnaire. With respect to physical capacity, he did not indicate any difficulties with his spine at all.
…
As part of my examination I noted that he had a thoracic kyphosis or spinal deformity affecting the thoracic spine and neck. This would be an intrinsic factor for the development of spinal pains.
[30] T18 folio 52-53.
On 6 September 2011, Dr McGrath saw Mr Sheppard and reported[31] -
I had previously seen [Mr Sheppard] for a stress related problem. It was only when Comcare wrote to me this year that I became aware that he was concerned about a spinal problem. Today I took a history and gave him some general advice regarding spines and future occupations.
According to [Mr Sheppard], he injured his spine when he fell in 2006 and has had intermittent difficulties ever since, including aggravations from work. [Mr Sheppard] was wondering if his aggravations were a significant contributor to his poor performance and ultimately leaving the Public Service. There is insufficient data to conclude work was the cause of his pains.
[31] T26 folio 70.
On 13 September 2011, Dr McGrath examined Mr Sheppard and reported that[32] -
In addition to the consultation, [Mr Sheppard] emailed me some graphical data plots of work volume …
…
The current evidence suggests that [Mr Sheppard] has a constitutional [spine] condition which may have become aggravated by prolonged desk work with insufficient rest breaks.
[32] T32 folio 117 – 118.
As Dr McGrath’s oral evidence confirms, his use of the word ‘may’ implies no more than a possibility, which he did not consider was established as a probability.
On 20 September 2011, Dr Chandran, a neurosurgeon, examined Mr Sheppard. The following day the Associate Professor reported[33] -
I note the history of spinal problems in 2006 going on to around 2008/2009.
He says he was doing a sedentary job with a lot of movement of rotation of the spine and started to experience pain then.
He stopped working in October, 2009 and he says the pain has gradually settled and he in fact has no pain.
The purpose of this visit seems to get an opinion about the diagnosis of scoliosis and kyphosis which was apparently brought up on an X-ray done.
…
My examination showed no power in the upper limbs, reflexes and sensation with normal sensation over the trunk. There was no tenderness over the thoracic spine and I could not see any obvious curve or kyphosis with his spinal movements.
I have seen his X-rays which show a mild curve in the upper thoracic spine which may be physiological rather than pathological. There is no deformity that I could see beyond this mild curve which may be secondary to some pain or simply related to his posture when the X-ray was done. I really cannot read much into this.
[33] T36 folio 124.
As can be seen, the history reported is of no present pain. Dr Chandran does not make any clinical findings on examination that would support Mr Sheppard’s assertion that he was suffering from a neck problem at that time.
Treatment notes in Exhibit 30 at ‘A95’ on 20 October 2011, prior to Mr Sheppard commencing work at the Clean Energy Regulator, record the following –
[patient] now:
1) Sore in Tx [thoracic spine]
2) Cx [cervical spine] OK – stiff
3) HA’s – no migraine
- N
4) Vision OK –
5)
- was study, gaming on computer
- gets sore if ↑ physical output – fearful of this
- No work since ‘09
Has seen Dr McGrath x 4
Due to resume FT work this Monday
The treatment notes on 10 November 2011 record the following[34] -
Deadline at work – 1st week
clt tension in Cx/sh’s
HA – blurry vision
…
This evidence suggests that Mr Sheppard complained of tension in his neck and shoulders in his first week at work. The presence of some tension in Mr Sheppard’s neck on commencing employment is not consistent with an injury, in the sense of a sudden physiological change or an ailment to which his employment contributed in a significant degree.
[34] Ibid, at ‘A 96’.
Mr Sheppard’s evidence that he purchased a TENS machine on 17 November 2011[35] and that he consulted Dr Bannerman on 28 December 2011 does not establish the existence of a neck injury at that time. The same can be said of Dr Eaton’s review on 21 May 2012[36] - the reference to “Pain more localised Burning… TENS machine works. No neck exercises now” suggests that Mr Sheppard may have experienced pain, but it is not established that this was in his neck. It is not established by reliable evidence that the TENS machine was obtained or used for the purpose of treating neck symptoms. Dr Bannerman reported the following[37] -
[35] Exhibit 32, ‘F107’.
[36] Exhibit 17.
[37] Exhibit 32, ‘F109’.
History
2008 prolonged back pain between shoulder blades
Had increased in pain and also blurred vision, hadaches [sic] dizziness, photosensitivity. Has been off work for 2 years. Started work 2 months ago.
Not functioning at work. Doing data entry work. If sits for long periods gets blurry vision/dizzy and gets tension in neck.
Claims that ergometrics of workstation is Ok.
Examination
Good ROM in Neck
Neck protrudes forwards slightly
Normal power
Normal sensation
Some tension palpable in trapezius muscles
Nothing to suggest an anatomical cause for symptoms.
Advised to make sure is not raising shoulders while working.
As can be seen, Mr Sheppard’s report of neck tension when sitting for long periods is not confirmed on examination, although Dr Bannerman noted some trapezius muscle tension.
On 14 November 2011, Mr Bloom reported the following[38] -
Reason for contact: thoracic pain and stiffness
I have provided [Mr Sheppard] with a home program of cervical/thoracic spine mobilisation exercises and stretches. I will progress his program to include core and hip strength and stability exercises. [He] will also need to include a cardio vascular program to his regime. As [his] musculo-skeletal condition improves, he should notice less symptoms in his spine.
[38] Exhibit 30, ‘A 94’.
On 5 December 2011, Mr Sheppard consulted Dr Wylie, a general practitioner at the Kingston Family Practice. Dr Wylie’s notes do not record any complaint of neck pain or neck symptoms, although there is a reference to “Seeing chiropractor on week end”[39].
[39] ST 30 folio 85.
Mr Sheppard next sought treatment on 23 January 2012 from Dr Curtotti. Her notes for this consultation do not expressly refer to any complaint of neck symptoms, although she referred Mr Sheppard for an MRI scan of his neck and also referred him to Dr Eaton. The Doctor’s notes for a subsequent consultation with Mr Sheppard on 10 February 2012 include the following[40] –
Has ongoing neck issue, Seeing pain specialist-Dr Eaton
Plans to see Dr Speldewinde. Been trying to wrok [sic] through pain. Possible ligamentous injury. Not doing neck exercises as can aggravate symptoms. Ftigue [sic] has caught up so took today off.
…
[40] Ibid, folio 86.
I note a subsequent report by Dr Curtotti on 29 October 2012 that Mr Sheppard attended a rehabilitation programme at a pain management clinic[41].
[41] Exhibit 30 ‘A 90’.
On 4 February 2012, Mr Sheppard presented to the Emergency Department of the Canberra Hospital complaining of neck stiffness and headache. The Resident medical Officer recorded the following[42] –
[Mr Sheppard] presented to the emergency department today with ongoing chronic neck pain.
[He] has been experiencing neck pain and headache since 2008 which has been constant and ongoing…
…
On examination, observations were stable. Chest was clear and abdomen soft.
Neurological examination was unremarkable.
[Mr Sheppard] was reassured and discharged home.
…
[42] Ibid, ‘A 98’.
On 9 February 2012, the following history was recorded in a Comprehensive Workstation Assessment Report[43] –
- Whiplash injury: Mr Sheppard advised that he had sustained a whiplash injury while travelling to work approximately five years ago. He reported that he had been experiencing ongoing neck stiffness, dizziness, blurred vision and fatigue that he believed were associated with this injury. Mr Sheppard informed that his symptoms had been getting progressively worse prompting several visits to the ER and an MRI scan which had shown inflammation in several ligaments in his neck. Mr Sheppard stated that he was scheduled to consult a specialist regarding his symptoms in March.
The Report recommended a new chair with inflatable lumbar support, a document holder, a reading/writing board and a monitor riser[44].
[43] Exhibit 30, ‘A88”
[44] Ibid, ‘A 89B’.
On 14 February 2014, Dr McGrath produced a further report[45], in which he described diagnoses by Dr Eaton of an occupational overuse syndrome, by Dr Speldewinde of a cervical postural strain, and by Dr Bodel of a soft tissue injury to the cervical spine as conjectural. Dr McGrath reported that –
All observers agree that Mr Sheppard is complaining of discomfort or pain…
An inefficient musculoskeletal system… can under certain conditions generate strain related symptoms. I diagnosed a thoracic scoliosis, which is an intrinsic factor for poor performance of the upper spinal region.
…
On the balance of probabilities, cervical rotations did not create his problem… Mr Sheppard is seeking a discreet structural cause which does not exist…
…
He did not have a significant or residual neck injury as a result of events around February/March 2008. I saw him 23 December 2008 and there was no mention of neck difficulties. There was no convincing history of neck trauma from work events around October/November 2011. This is not to state that he could not have some neck pain from time to time given his thoracic scoliosis, which puts the neck at a disadvantage…
[45] Exhibit 28.
Dr McGrath gave oral evidence, largely confirming and explaining the contents of his written reports. Like Dr Curtotti, he accepted the possibility that certain medications and activities might have a masking or mitigating effect on Mr Sheppard’s experience of pain symptoms.
Dr Bodel produced a report[46] dated 24 April 2013, and gave oral evidence. In his report, Dr Bodel said –
From a musculoskeletal point of view I am unable to make a firm diagnosis. It appears likely that he has suffered a soft tissue injury to the cervical spine but I can see no objective evidence of structural injury to the discs or the facet joints caused by his work.
…
At best he has a cervical sprain and that has been caused by the nature and conditions of his work at the Attorney-General’s Department. The diagnosis is a tentative diagnosis here as I have no hard evidence of disc pathology or other structural damage which would explain his physical complaints. The work at the Attorney-General’s Department is an aggravating factor to soft tissue injury but the aggravation should settle in the absence of any underlying structural injury. The two reports of MRI scan show no structural injury. Any soft tissue injury has been caused by the nature and conditions of work. He has provided me with a lengthy printout of the work practices required of him and they do appear to require significant postural matters which may aggravate neck pain. As I have indicated, however, I can see no major clinical evidence of a structural musculoskeletal injury which explains his current condition.
[46] Exhibit 1.
Dr Bodel went further in his oral evidence, suggesting the existence of a soft tissue injury to Mr Sheppard’s neck on the balance of probabilities. Notably, he rejected Dr McGrath’s finding of a thoracic kyphosis and scoliosis.
It is quite clear that Dr Bodel relied upon the account given to him by Mr Sheppard. Even though he used a form of words that suggests more than the mere possibility of a soft tissue injury to Mr Sheppard’s cervical spine, there is no objective or reliable clinical basis for this conclusion. I prefer the evidence of Dr McGrath. Dr McGrath is a suitably qualified doctor who has examined Mr Sheppard several times over a long period, whereas Dr Bodel, albeit suitably qualified, examined Mr Sheppard only once, long after the alleged injury. Dr Bodel was not able to provide a cogent explanation for the continuation of a soft tissue issue over several years when, by his own account, he would expect such an injury to resolve in a short period where there is no underlying structural damage.
Dr Speldewinde was not called to give evidence. His brief report is at T65. This does not set out any clinical or objective basis for the diagnosis of cervical postural strain. While a diagnosis of this kind is a possibility, it is not consistent with the objective evidence and the contemporaneous records of Mr Sheppard’s treating doctors.
Dr Eaton provided a medical certificate and a report, and he appeared to give oral evidence. On 12 March 2012 Dr Eaton reported that Mr Sheppard probably sustained “a probable occupational overuse injury with associated increased cervico-thoracic musculo-ligamentous tension, headache, dizziness, blurred vision, sleep difficulties and nausea”[47]. In Dr Eaton’s opinion “The increased musculo-ligamentous tension of the neck, shoulder girdles and upper back would have resulted in headaches and an increase in pain levels”.
[47] T67 folio 241.
On 23 April 2013, Dr Eaton examined Mr Sheppard and certified that “in relation to the injury stated as occurring on November 2011… I find that [Mr Sheppard] is suffering from Chronic cervical spine pain and dysfunction, stiffness and associated cervicogenic headaches”, caused by “work activities” – “Sudden left lateral movement of the neck. Excessive workload with inadequate breaks. Associated symptoms of stress and anxiety. Excessive reading of files without proper ergonomic arrangement”[48].
[48] ST18 folio 47.
In his oral evidence, Dr Eaton explained the basis for his diagnostic assessment of Mr Sheppard’s condition. He agreed that he relied upon the history provided by Mr Sheppard as correct. When informed that Mr Sheppard had not complained of neck symptoms for an extended period following the alleged onset of neck symptoms, Dr Eaton explained that he had accepted Mr Sheppard’s history of unremitting neck, shoulder girdle or upper back pain from 2008 and considered it unusual for someone who is interested in his own health, such as Mr Sheppard clearly is, to make no reference to such a chronic condition. He accepted that other factors may mask or mitigate symptoms, and that symptoms may fluctuate from time to time. He also found it unusual that Mr Sheppard’s alleged symptoms did not reduce when he was absent from work in February 2008, while on holiday in Europe.
On balance, Dr Eaton’s diagnosis of a occupational overuse injury to Mr Sheppard’s cervical spine or neck in March 2008 or in October or November 2011, or a cervico-brachial pain syndrome, is not established by reliable evidence as work-caused, either in the form of a frank injury or in the form of an ailment to which Mr Sheppard’s former employments in 2008 and 2011 contributed to a significant degree. I prefer Dr McGrath’s evidence on this point as Dr McGrath examined and treated Mr Sheppard over an extended period from 2008 to 2011, and his conclusions are consistent with the contemporaneous evidence, whereas Dr Eaton was first consulted in 2012, sometime after the alleged injurious events, and to a very large extent he is reliant upon the accuracy of the history given by Mr Sheppard.
I do not accept Mr Sheppard’s assertion that symptoms he says he has experienced in various parts of his body, including back stiffness, facial pain, shoulder pain, fatigue, vision problems and headaches, are attributable to the neck injuries he is presently claiming. The causal connection Dr Eaton posits, linking the pain and other symptoms Mr Sheppard complains of with his previous employments in 2008 or in 2011, is no more than a possibility, and mere possibility is not sufficient to make out either claim.
Dr Curtotti’s evidence that Mr Sheppard is likely to have suffered an injury to his neck, and Dr Bodel’s evidence that Mr Sheppard suffered a soft tissue injury to his neck in March 2008, are not established on the balance of probabilities.
Mr Sheppard has raised competing arguments and submissions in respect of ailments and aggravation injuries affecting his neck in support of his claims. For example, Mr Sheppard says that he sustained a whiplash injury in a motor vehicle accident in February 2007. Of this he asserts, on the one hand, that the injury resolved in a matter of days and he experienced no further neck problems until December 2007, when he experienced neck stiffness that he attributes to his employment. On the other hand, he argues that, even though he did not expressly feel neck symptoms or neck pain from February to December 2007, something was wrong with his neck and this latent condition was aggravated by his duties in employment by the Attorney-General’s Department. Furthermore, on 9 February 2012, Mr Sheppard gave a history of experiencing ongoing neck symptoms following a whiplash injury in February 2007. Each of these submission cannot be true.
Mr Sheppard made similar submissions in respect of the claimed neck injury in 2011, asserting on the one hand that he suffered from a persisting injury with fluctuating symptoms, including periods of latency or very low level symptoms, that was aggravated by his duties in employment by the Clean Energy Regulator, or, on the other hand, he suffered a fresh injury to his neck in those circumstances.
Competing arguments of this kind tend to blanket the facts with constructions of law, historical interpretation and medical conjecture, without due regard to Mr Sheppard’s actual circumstances from December 2007. I have considered the various explanations, competing submissions and conflicting arguments Mr Sheppard has raised in these proceedings. On the present materials, I am satisfied the legal, historical and medical issues he has raised are not well-founded and cannot be accepted.
Under the Act ‘aggravation’ is defined to include acceleration or recurrence[49]. Mr Sheppard is correct when he asserts that ‘aggravation’ is synonymous with exacerbation, in the sense that the ailment is made worse or the experience of the ailment is “increased or intensified by an increase or intensifying of symptoms"[50] – “Neither the absence of change in the underlying condition nor the temporary nature of the symptoms experienced preclude the existence of an aggravation of an ailment for the purposes of the SRC Act”[51]. But this does not assist him. To succeed, the alleged ‘aggravation’ must fall within the terms of the legislation[52]. Without a temporal or causal connection between the neck ailments or symptoms he alleges and the circumstances of his employment in March 2008 and in October or November 2011, the neck injuries he is claiming are not made out under the Act.
[49] s 4.
[50] Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626, per Kitto J at 634-635.
[51] Mellor v Australian Postal Corporation [2009] FCA 504 at [26].
[52] Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40, per Toohey J at [13].
I accept that Mr Sheppard truly believes that he has discovered in Dr Eaton’s diagnosis of a cervico-brachial pain syndrome the cause of his various alleged symptoms. It is possible that Dr Eaton is correct. But no sufficient causal connection to Mr Sheppard’s previous employment in 2008 and 2011 is established.
When assessing the evidence and making findings in proceedings such as this the reasonable satisfaction civil standard must apply. Reasonable satisfaction should not result from indefinite evidence or indirect inferences[53] - mere possibility or conjecture is not sufficient, however bright the patina of hopeful interpretation and aspirational argument may be. Beaumont J discussed the meaning of the term “reasonable satisfaction” in Repatriation Commission v Smith[54] and said:
There is, in this connection, a distinction of substance to be drawn between probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other[55].
[53] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.
[54] (1987) 74 ALR 537.
[55] Ibid, at 547.
The balance of probabilities test does not authorise a decision maker to choose between guesses, on the ground that one guess seems more likely than another[56]. Nevertheless, as Lord Denning observed in Bater v Bater[57] “in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard”[58]. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness “an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility”[59].
[56] Jones v Dunkel (1959) 101 CLR 298 at 305.
[57] Bater v Bater [1950] 2 All ER 458.
[58] Ibid, at 459.
[59] (2000) 49 NSWLR 262 at 278.
Thus, setting theories of causation to one side, this standard must be applied when addressing the question of legal liability raised by section 14 of the Act. It is necessary to determine whether the medical and other evidence is sufficient to justify an inference as to the probabilities in the manner contended for by Mr Sheppard. I am reasonably satisfied that it is not.
Weighing all of the materials and evidence, I am not satisfied that Mr Sheppard sustained an injury to his neck, however described, in March 2008 or in October or November 2011 for the purposes of the Act. The materials before me do not establish that Mr Sheppard suffered a frank neck injury in March 2008 or in October or November 2011, or that he suffered from an ailment involving neck pain or neck symptoms to which his employment in 2008 or in 2011 contributed to a significant degree.
It follows that the two claims underlying these proceedings cannot succeed and the decisions under review must be affirmed.
I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
..............................[sgd]..........................................
Associate
Dated 21 March 2014
Dates of hearing 25, 26, 27 February 2014 Applicant In person Counsel for the Respondent Andrew Dillon Advocate for the Respondent Luke Woolley Solicitors for the Respondent Sparke Helmore
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