TIMOTHY DONALD KIDD and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2006] AATA 378

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION 2006 AATA 378

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/66

VETERANS’ APPEALS DIVISION		)
Re		TIMOTHY DONALD KIDD

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date1 May 2006

PlaceHobart

Decision

The decision under review is affirmed.

  (Miss Mary Imlach)
  Senior Member

CATCHWORDS

Compensation - disease - injury - contributed to in a material degree.

Compensation (Commonwealth Government Employees) Act 1971 (repealed)

Safety Rehabilitation and Compensation Act 1988 - ss4,14,16,24,27

Treloar v Australian Telecommunications Commission 1990 26 FCR 316

Comcare v Canute (2005) FCAFC  262

REASONS FOR DECISION

1 May 2006 Miss Mary Imlach (Senior Member)         

1.      Mr Timothy Donald Kidd applied on 4 January 2002 for compensation in respect of an injury, which he described as “back pain, severe pain, spasms affecting right side of body, lower back and right shoulder” (“the injury”).    Mr Kidd claimed he suffered the injury on 13 March 1972 in the course of his service with the Royal Australian Navy, when a tug rope broke while HMAS Brisbane, the vessel he was in was under tow.    The Military Compensation and Rehabilitation Service accepted liability on 31 January 2002 for “severe bruising left upper and lower lip, small laceration of mouth, blood nose” in relation to the incident on 13 March 1972, but by determination made on 29 May 2002 (“the determination”) refused to extend liability to include the injury.  The basis of the determination was that the injury claimed by Mr Kidd was not a result of the incident on HMAS Brisbane on 13 March 1972.   Mr Kidd requested a reconsideration of the determination by a delegate of the Military Rehabilitation and Compensation Commission on 10 December 2004.   The delegate affirmed the determination on 9 May 2005.

Issue

2.      Did Mr Kidd (the applicant) suffer an injury to his lumbar spine on 13 March 1972 and, if he did, has that injury contributed to in a material degree to his current condition.

Submissions of the Applicant

3.      Mr Kidd who represented himself contended that he had suffered an injury to himself during the incident on HMAS Brisbane on 13 March 1972.

4.      He stated that there had not been an accurate and proper interpretation of the sick bay report dated 13 March 1972, and that Dr Humphries the witness for the respondent was in error therefore in his report of 22 March 2002.

5.      Mr Kidd continued that he had disclosed in his medical statement of 15 February 1973 on his discharge from the Navy that he suffered from backache, but the Navy had not carried out an X-ray of his back, although they did carry out an X-ray of his chest.

6.      Mr Kidd said that he believed that it was somewhat more than speculative that the injury of 13 March 1972 was a contributing factor to his condition.   He claimed that in the accident of 13 March 1972 he was stood over and denied adequate follow-up medical assessment and treatment.

Submissions of the Respondent

7.      The respondent who was represented by Mr Dubé said that there was no dispute between the parties that Mr Kidd suffers from a degenerative condition in his lumbar spine.   The issue between the parties was whether or not the incident on board HMAS Brisbane on 13 March 1972 in any way has contributed to that degenerative condition.

8.      Mr Dubé submitted that there was no evidence before the Tribunal on which it could be satisfied on the balance of probabilities that first, Mr Kidd suffered a compensable injury to his lumbar spine on 13 March 1972 and, if he did, that it contributed materially to his current condition.

9.      The respondent referred the Tribunal to the obiter dicta of the Federal Court in Comcare v Canute [2005] FCAFC 262 to support his contention that content must be given to the word “material” contained in the legislation as it presently stands. The contribution of the injury to the applicant’s present condition must be more than a mere contributing factor. The Court said:

“It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease accordingly it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged”.

10.     Mr Dubé also referred the Tribunal to the decision in Treloar v Australian Telecommunications Commission 1990 26 FCR 316 and to the observations of the Court in that decision that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility and conjecture.

11.     The respondent contended that any back condition from which the applicant allegedly suffered, including spinal degeneration, was unrelated to his naval service and was caused by his post discharge employment.

Discussion of the Evidence

12.     Mr Kidd relied on service medical records dated 13 March 1972, 19 October 1972 and 15 February 1973, a medical report from Dr M Rathbone dated 15 May 2002, a letter from Regional Imaging Tasmania dated 25 February 2005 and a Psychological Assessment Report dated 8 July 2003 from Mr Michael Marriott, who also gave oral evidence.

13.     The respondent in support of its contentions submitted the medical report of Dr David Humphries dated 22 March 2002.   Dr Humphries also gave oral evidence to the Tribunal by telephone.

14.     The Tribunal accepts the respondent’s contention that the evidence supplied by Mr Marriott was of no assistance in determining the crucial issue of whether or not Mr Kidd suffered an injury to his lumbar spine on 13 March 1972.

15.     In giving oral evidence Dr Humphries confirmed the opinions expressed in his written report of 22 March 2002.    In response to the applicant’s question whether the accident described with the tug-rope was a contributing factor to his condition, Dr Humphries replied “I haven’t been able to find evidence to suggest that is the case.    The medical report from the original incident doesn’t describe injury to the lumbar spine and the discharge medical reports the lumbar spine as being normal.”    He added in response to a further question by Mr Kidd: “The problem with degenerative disease is that there may be multiple factors involved, but if there’s not a report of significant spinal problem at the time of the injury, any sort of attribution is very speculative.”

Consideration of the Law and Findings

16.     The relevant legislation is contained in s4 of the Act:

“disease means:

(a)       any ailment suffered by an employee; or

(b)       the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.”

“injury means:

(a)       a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment.”

17.      The Tribunal is satisfied that Mr Kidd has spinal degeneration as described by Dr Humphries and that this condition is unrelated to his naval service.

18.     In making this finding we prefer the evidence of Dr Humphries to the opinion of the practitioner relied upon by Mr Kidd.    Dr Humphries provided a report which was prepared after consultation with Mr Kidd and after consideration of the available documentary evidence, rather than simply describing the symptoms from which he has suffered.

19.     On the other hand the medical witness, Dr Rathbone, relied upon by Mr Kidd did not examine any service documentary evidence and did not comment on the extent to which the applicant’s post discharge employment had contributed to his condition.  The psychologist called by Mr Kidd described his symptoms rather than giving a diagnosis.

20.     In relation to the contention by the applicant that the Daily Medical Record of 13 March 1972 should be read as saying “Severe bruise left upper and lower leg.  Small laceration of mouth, blood nose”.  The Tribunal concedes that the writing in the report is indecipherable and that it is possible that the applicant’s reading of the report may be correct.  There is, however, no other evidence at the time of the accident on HMAS Brisbane which corroborates the applicant’s contention that he suffered severe bruising to the left hand side of his body.  Even if the Tribunal conceded that Mr Kidd’s interpretation of the writing in the report were correct, his interpretation does not describe an injury to the lumbar spine.  The Daily Medical Report of 19 October 1972 of a further accident sustained by the applicant does not disclose any injury to the lumbar spine.  There is evidence before the Tribunal of the applicant sustaining a back injury in 1974 whilst lifting cement bags, but this accident  occurred after the applicant was discharged from the Navy.

21.     The Tribunal noted the entry in the applicant’s Medical Statement on Discharge dated 15 February 1973 in which he stated that he suffered “back  ack right hand side above hip”.  In response to the question in the statement, when did the injury occur and where was he serving at the time, he responded “approx 2 months ago HMAS Penguin”.  If the applicant was referring to the accident on 19 October 1972 whilst he was on HMAS Penguin, there is no reference in the Daily Medical Report of that accident nor of any lumbar injury in his discharge medical report of 15 February 1973.  The medical report showed the lumbar spine as being normal.

22.     The Tribunal concurs with the evidence of Dr Humphries when cross-examined by the applicant when he said “The problem with degenerative disease is that there may be multiple factors involved but if there’s not a report of significant spinal problem at the time of injury, any sort of attribution is speculative”.

23.     The Tribunal finds that on the balance of probabilities Mr Kidd did not suffer an injury to his lumbar spine on 13 March 1972 and that the accident sustained by him on that date did not materially contribute to his current condition.

Decision

24.     For the reasons set out the Tribunal affirms the decision of the respondent on 29 May 2002 not to pay compensation to the applicant for “back pain, severe pain, spasms affecting right side of body, lower back and right shoulder” condition.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  1 and 2 March 2006
Date of Decision  1 May 2006
Counsel for the Applicant         Applicant appeared on his own behalf
Counsel for the Respondent     Mr Ben Dube
Solicitor for the Respondent     Australian Government Solicitor