Wade and Comcare
[2000] AATA 473
•13 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 473
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q99/683
GENERAL ADMINISTRATIVE DIVISION )
Re JEFFREY KENNETH WADE
Applicant
And COMCARE
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member Dr JB Morley, Member Captain ET Keane, Member
Date13 June 2000
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
COMPENSATION – injury or disease arising out of the course of employment – weight to medical evidence.
Commonwealth Employees' Compensation Act 1930 s 9
REASONS FOR DECISION
13 June 2000 Deputy President DP Breen, Presidential Member Dr JB Morley, Member Captain ET Keane, Member
This was a review of a decision dated 5 May 1999 to reject liability for an orthopaedic spinal condition, a neurological condition, a vascular condition and post traumatic stress disorder. That decision affirmed an earlier determination dated 20 August 1986.
The case was heard before a Tribunal constituted by myself, as Presiding Member, sitting with Dr Morley and Captain Keane, Members, on 8 and 9 May 2000. The applicant, Jeffrey Kennedy Wade, represented himself at the hearing. Comcare was represented by Mr CJ Clarke of Counsel instructed by Mr J Bishop of the Australian Government Solicitor's Office.
At the hearing the following documents were taken into evidence.
Exhibit 1 "T" Documents
Exhibit 2 Statement of Jeffrey Kenneth Wade dated 23.12.99
Exhibit 3 Statement of Walter B Pridmore – undated
Exhibit 4 Statement of Terry Moonie JP dated 20.1.00
Exhibit 5 Statement of JS McDougall dated 12.4.99
Exhibit 6 Documents from Compensation File dated 20.8.79
Exhibit 7 Confidential Daily Medical Record dated 18.1.62
Exhibit 8 Reconsideration by the Remuneration Development Defence Force Compensation Section dated 19.6.90
Exhibit 9 Defence Safety Management Agency Search Response 24.2.00
Exhibit 10 Myelogram Report dated 17.12.81
Exhibit 11 Report of Dr DGP Jenkins dated 13.3.00
Exhibit 12 Report of Dr GH Nutting dated 25.1.00
Exhibit 13 Report of Dr Tze-Ki Ho dated 18.8.99
Exhibit 14 Letter from Queensland Rail dated 21.2.00
Exhibit 15 Letter from Maryborough Hospital dated 24.2.00
Exhibit 16 Further Statement of Jeffrey Kennedy Wade dated 10.1.99
Exhibit 17 Statement of R West – undated
Oral evidence was given by the applicant; Mr McDougall and Mr West, long-time friends, and Mr Moonie, a former Duty Regulating Petty Officer on HMAS Melbourne. Medical evidence was also given by Dr John Newton Chalk, Dr Ian Bruce McPhee, Dr Terrance O'Malley and Dr David Jenkins.
There was no dispute at the hearing that the applicant, on 10 September 1961, had fallen from his bunk on board the HMAS Melbourne whilst returning to Australia from New Zealand and sustained some head injuries. This was accepted to be a personal injury which occurred in the course of Mr Wade's employment within the meaning of Section 9 of the Commonwealth Employees' Compensation Act 1930.
Sections 9 and 10 are the applicable sections and are in the following terms:
"9(1) If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.
…10(1) Where –
(a)an employee is suffering from a disease and is thereby incapacitated for work; or
(b)the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act, as if the disease were a personal injury by accident arising out of or in the course of his employment."
The question before this Tribunal is whether other conditions claimed to cause incapacity for work are injuries or diseases arising out of the applicant's employment on the HMAS Melbourne.
Considering, firstly, the claimed vascular conditions of chronic leg ulcers, pulmonary embolism and deep vein thrombosis, there was not sufficient medical evidence presented to the Tribunal to allow it to make any link, on the balance of probabilities, between the fall from the bunk and these vascular conditions. As such, it is the Tribunal's finding that these conditions have not been established as arising from the applicant's employment.
The second condition requiring consideration is the applicant's claim to be suffering post traumatic stress disorder. The applicant gave evidence that he has vast gaps in his memory from the date of the incident until May 1963. His friends also gave evidence that the applicant's personality was altered after the incident. However, the medical evidence on the matter was quite clear that this condition was not related to the fall from the bunk.
Dr Jenkins in his oral evidence agreed that Mr Wade did suffer from anxiety and that it may have dated back to the incident on the ship. Also, he thought that it was reasonable for there to have been some memory loss for up to two years after the injury to the head. However, this did not alter his opinion in his report that "Mr Wade is describing symptoms of a generalised anxiety disorder, but in view of his memory lapse it is difficult to offer any definite opinion about the cause of this".
Dr Chalk said in his report dated 2 March 1999:
"This 57 year old man does not suffer from an Axis I psychiatric disorder related to the fall from his bunk in 1961. I do not think that he currently suffers from an Axis I psychiatric disorder but rather he has had longstanding interpersonal difficulties and has a mixed disorder or Axis II".
Dr Chalk was very clear that a person could not suffer from PTSD in relation to an event they do not remember. PTSD is a condition whereby a person is affected because he or she keeps remembering a traumatic event – the person is constantly mindful of the trauma experienced. Mr Wade was also very clear in his evidence that he does not actually remember falling from his bunk. As such, although the applicant may suffer from some anxiety, the medical evidence is clear that there can be no finding of post traumatic stress disorder arising out of his service with the Navy.
The third claim is for a neurological condition in the form of severe headaches. Mr Wade says that he has experienced headaches since 1961 and that shortly after the fall from the bunk he experienced a number of blackouts. Mr McDougall attested to having been present during one such blackout. Mr Wade's medical records refer to an incident in December 1961 where he hit his head on a car hoist at a garage station which resulted in a blackout and hospitalisation for four days. Dr Atkinson, a Neurosurgeon, in his report dated 18 February 1999 (Document T70) stated that in his opinion the fall in 1961 was definitely not the principal cause of the headaches. He considered that the headaches were probably the result of underlying personality factors and were associated with anxiety and hypertension. Clinical notes of a Dr IA Brodziak (Document T12) made in January 1962 note the headaches but provide an opinion that the cause was not organic. As such, it is the Tribunal's view that on the balance of probabilities, the neurological condition is not related to the incident in 1961 and so not related to the applicant's employment.
Considering, finally, the back condition claimed by Mr Wade, the medical evidence in relation to this condition is very clear. Dr Graham Anderson, an Orthopaedic Surgeon who examined Mr Wade in December 1987, stated that "it is unlikely that the back condition could have been caused by the trauma of 1961 and it is infeasible that the protrusion noted could have dated from 1961". (Document T40). Dr Bruce McPhee, a Spinal Surgeon, who wrote a report in January 1999 (Document T66) stated:
"The claimant suffers from degenerative lumbar spondylosis. On the balance of probabilities this is constitutionally based. There is no evidence of focal injury. There is little evidence either historically or on radiography to support a claim for significant back injury."
Further, it was Dr McPhee's view that there was only a 0-5% possibility that the fall had any impact on the applicant's back condition in any way.
Dr Tze-Ki Ho, an Orthopaedic Surgeon, provided a report on 18 August 1999 (Exhibit 13). He stated:
"Unfortunately there were no medical records during this 20 years that he could recall which may have documented his low back pain or any sciatic symptoms. To that end this is a rather difficult situation. While one can claim it is possible that his injury was done 20 years prior to his acute symptoms, I would not be in a position to say there is a probability."
Dr G Nutting, another Orthopaedic Surgeon, provided a report dated 25 January 2000 (Exhibit 12). His evidence was:
"I would have felt that if your injury in 1961 had been of major consequence then all of these activities such as investigations, etc would have been carried out some 20 years earlier. It is unlikely that a disc protrusion, if indeed it was a disc protrusion, would remain in a clinical state for 20 years waiting for a twisting injury to become symptomatic again. In this aspect I agree completely with Professor McPhee's comments that the findings of the CT scan of January 1999 are more suggestive of a natural progression of degenerative changes, rather than a specific level of injury…I think it is difficult to make the argument that your current symptoms are even related to the 1961 pathology, since CT evaluation reveals that this pathology (if it did exist) has resolved and there is no guarantee that this is a natural progression of that pathology."
Given the above medical opinion and a review of all the evidence presented, it is the Tribunal's finding that the back condition claimed by the applicant is not related to his fall in 1961 and that it did not arise in the course of his employment.
Overall, the Tribunal found that the medical evidence was predominantly against the applicant's claims despite some of the angles Mr Wade sought to place upon it. The other evidence adduced by Mr Wade did little to support his claim as many of the witnesses had lost contact with him for many years and their memories of events were not entirely clear. Mr Wade's own evidence was often vague, unreliable and self-serving. It is the Tribunal's finding, therefore, that Mr Wade is not a credible witness and without any conclusive medical evidence to support his claims he cannot succeed.
For the above reasons, the Tribunal affirms the decision under review.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member, Dr JB Morley and Captain ET Keane, Members
Signed: Emma Oettinger
AssociateDate/s of Hearing 8.5.00, 9.5.00
Date of Decision 13.6.00
Rep. for the Applicant Applicant appeared in person
Counsel for the Respondent Mr CJ Clarke
Solicitor for the Respondent Australian Government Solicitor
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