Wager and Military Rehabilitation and Compensation Commission (Compensation)

[2018] AATA 4074

Wager and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 4074 (31 October 2018)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2017/0071

Re:Peter Wager

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:31 October 2018

Place:Brisbane

I affirm the decision under review.

.............................[SGD]......................................

Deputy President Dr P McDermott RFD

CATCHWORDS

COMPENSATION – whether injury occurred while performing military service – whether injury arose out of or in the course of the applicant’s defence service – injury did not occur while at work or on a journey to work – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

31 October 2018

INTRODUCTION

1. The applicant in this matter suffered an accident on 4 February 1995 which resulted in a fracture to his left fibula. He is claiming compensation for that condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) on the basis that it was related to his military service.

2. The applicant served in the Australian Army (“the Army”) from 2 July 1975 to 9 July 1995.

   THE CLAIM

3. On 1 June 2016 the applicant lodged a claim for the condition of “fractured fibula left side”, which he contends occurred while he was performing military service. On 8 September 2016, the respondent rejected the applicant’s claim for this condition, on the basis that there was insufficient evidence that the injury arose out of or in the course of the applicant’s defence service.

4. On 28 September 2016 the applicant provided correspondence to the respondent which was treated as a request for a reconsideration of the determination. The respondent provided the applicant with two opportunities to submit further evidence in support of the request for reconsideration. No further evidence was provided.

5. On 30 November 2016 a delegate of the respondent affirmed the determination of 8 September 2016. On 5 January 2017 the applicant filed an application for review of this decision with this Tribunal.

   LEGISLATIVE FRAMEWORK

6. The provisions of the Act which were in effect at the time of the applicant’s injury in February 1995 must be applied to this application.

7. Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

8. Section 4 of the Act contains the definition of an “injury”:

   "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;

9. Section 4 also contains the definitions of “place of residence” and “place of work”:

   "place of residence", in relation to an employee, means:

   (a) the place where the employee normally resides;

   (b) a place, other than the place referred to in paragraph (a), where the employee resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment; or

   (c) any other place where the employee stays, or intends to stay, overnight, a journey to which from the employee's place of work does not substantially increase the risk of sustaining an injury when compared with the journey from his or her place of work to the place referred to in paragraph (a);

   "place of work", in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment;

10. The primary issue to be determined is whether the applicant’s injury occurred while he was on a “journey” for the purposes of s 6(1)(b)(ii) of the Act. This provision applies as follows:

    6 Injury arising out of or in the course of employment

    (1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

    …

    (b) while the employee:

    (i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;

    (ii) was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;

    EVIDENCE

    Medical evidence

11. An outpatient clinical record dated 4 February 1995 notes that the applicant presented “after kicking L ankle out”, with a “small rotation and audible crack. Very painful”.[1] It was recorded that the ankle was tender and there was swelling, and the applicant was referred for an x-ray.

    [1] Exhibit A, T-Documents, T3.

12. An x-ray report of Dr Neil Orr dated 4 February 1995 reveals that the applicant had an oblique fracture of the distal fibula, with slight displacement.[2] Adjacent soft tissue swelling was also noted. On 27 November 2017 an email was provided by QLD X-Ray advising that this practice was only open from 9:00am to 12:00pm on Saturdays in 1995, and on call services were available for emergency outside of these hours.

    [2] Exhibit A, T-Documents, T4.

13. A special examination request dated 21 March 1995 noted that the left fibula was in plaster for six weeks.[3] An attached note of Dr O’Connell stated that the alignment and position of the applicant’s fractured distal fibula appeared “satisfactory within case”.

    [3] Exhibit A, T-Documents, T5.

14. An x-ray report of Dr Reasbeck dated 22 May 1995 noted the healing fracture of the distal fibula, and observed that its position was unchanged.[4] No other significant findings were noted.

    [4] Exhibit A, T-Documents, T6.

    Army personnel file

15. The applicant’s army personnel file contains a document titled “Report of an Injury or Illness – Army PM24” (“PM24 form”), which was date stamped on 28 June 1995.[5] This document contains a note that the applicant’s injury occurred at 1900 hours on 4 February 1995, at the applicant’s home. The report also notes that the injury occurred in the following way: “Returning home from work I steped [sic] over a bag and broke my leg”. The applicant signed this form on 19 May 1995. The applicant’s commanding officer also completed part of the form, noting that the incident occurred whilst the applicant was at home.

    [5] Exhibit B, Army personnel file, p. 166.

    The applicant

16. The applicant provided a statement in support of his application, and also gave evidence at the hearing.

17. The applicant’s statement dated 31 May 2017 declared that he injured his left ankle while carrying out his Australian Defence Force duties as a mess supervisor at the commanders’ mess, and not while he was at home. He stated that the incident happened on the morning of Saturday 4 February 1995 when he was walking to the kitchen/dining area to review the daily menu and ensure staff were aware of their daily duties. He incurred the injury when he stepped up onto a gutter, and heard a loud crack.

18. At the hearing the applicant confirmed the events that led to his injury, adding that, “my leg went out” and “I heard a crack”, and he was in pain after that. He stated that the incident occurred around 9am or 10am. When asked for further clarification as to how the injury occurred by stepping up onto a gutter, the applicant stated that his foot twisted on the gutter, but it did not roll over. He stated that he was still standing and did not fall over.

19. When giving evidence the applicant stated that it was normal practice for him to go and check how the mess was running on a Saturday. Under cross-examination he stated that he was expected to be at work as required, and the mess staff needed supervision and were untrained. He stated that he didn’t go in every weekend.

20. The applicant stated that he drove himself to the barracks medical centre for treatment, which was approximately 500m away from the mess. At the hearing the applicant clarified that he was helped into his automatic car by kitchen staff, and he needed help to get out of the car too. When he arrived at the medical centre he contacted his wife, who then drove to meet him. The applicant was advised that he needed to have an x-ray done, and he was referred to Park Haven X-Ray. The applicant’s wife drove him to Park Haven X-Ray and then back to the medical centre.

21. The applicant stated that when he returned to the medical centre with his x-ray results, he was informed that he had a fracture to his left ankle which required a full cast. He then had the cast put on.

22. In his statement the applicant also addressed the PM24 form. He stated that it was his signature on the form, but he did not complete the Part B section. He also stated that the Part A section, where it notes that the incident occurred at 1900 hours (7pm), was completed by the unit orderly room. The applicant admitted to signing the form around 3 months after the event, and that he did not read what was entered on the form.

23. At the hearing the applicant confirmed that it was his signature on the PM24 form, but stated that he does not remember signing the form. He stated that the form does not reflect what happened.

24. The applicant has contended that if the incident did occur as outlined in the PM24 form, at 7pm, he would have had to present himself to the Emergency Ward at the Townsville Hospital for treatment, in accordance with standing orders at the time.

25. Under cross-examination, the applicant confirmed that the other information recorded on the PM24 form was correct, including his name, unit number and rank. The applicant also admitted that where it states, “I steped [sic] over a bag and broke my leg”, this looked like his writing. However, the applicant did not accept that he had written that statement, or that he had said that to someone else who then wrote it down.

    Mrs Julie Wager

26. The applicant’s wife, Mrs Julie Wager, provided a statement dated 31 May 2017, and gave evidence at the hearing.

27. In her statement Mrs Wager outlined her recollection that the applicant went to work on a Saturday to check on a catering activity, and while he was at the commanders’ mess he tripped on a gutter and said he heard a crack. She stated that the applicant called to advise her that he was going to drive to the medical centre as his car was automatic, and asked her to meet him there. They then had to get x-rays done, and took the x-ray back to the medical centre where it was found that he had broken his left ankle. After his ankle was set, Mrs Wager drove the applicant home.

28. When giving evidence Mrs Wager stated that the applicant often went to work to check on something on the weekend. She stated that it would have been in the morning when he left for work, and she later got a phone call around mid-morning from the applicant saying that he had hurt his foot and asked her to come and get him so he could get x-rays. She confirmed that she, along with their children, went to meet him, and after he had x-rays performed they returned to the medical centre where it was identified that he had broken his leg.

29. Under cross-examination Mrs Wager advised that she was first asked to recall these events when she gave her statement in May 2017. It was put to Mrs Wager that her recollection of the events may not be completely accurate, and in response she stated that her statement contained only a recollection of the basic facts.

    SUBMISSIONS

    Applicant’s submissions

30. The applicant has submitted that the claimed condition was a result of his military service within the meaning of s 4 of the Act. He also submits that he satisfies the definition of an ‘injury’ contained in s 4 of the Act, in that his claimed condition arose out of, or in the course of, his military service.

31. The applicant contends that the fracture occurred while he was carrying out his required and authorised duties as a mess supervisor. He disputes that he was at home at the time of the incident, instead claiming that he was at the commanders’ mess and was walking to the kitchen/dining area to review the daily menu when he stepped up onto a gutter and sustained the injury.

32. The applicant submits that the claimed injury would not have occurred had he not been carrying out his required duties, that he was reasonably required, expected or authorised to do.

33. The applicant requests that the applicant’s claim for a fractured left fibula be accepted due to the incident resulting in the injury occurring while he was carrying out his required Australian Defence Force duties.

    Respondent’s submissions

34. It is the submission of the respondent that the applicant’s injury on 4 February 1995 occurred when the applicant was at home, and he stepped over a bag and broke his leg. The respondent submits that this is supported by the PM24 form, which should be preferred to any conflicting evidence as it is a contemporaneous document which was completed proximate to the time of the injury, and was partly completed and signed by the applicant. While the applicant did not accept that he completed the form, he did admit that the signature on the form was his and that the hand-writing looked like his. The respondent also submits that the form should be preferred given the level of detail that the form contains (including the time, date and event location of the incident); the length of time that has passed since the injury occurred, and the potential for any more recent recollections to be not entirely accurate; and the inconsistency that has arisen between the form and other current evidence. The respondent has further contended that if the incident occurred at work, there would be no reason for the PM24 form to exist.

35. The respondent drew attention to the inconsistencies and imperfections in the applicant’s and Mrs Wager’s evidence, including the applicant explaining at the hearing that his foot twisted on the gutter, and admitting that the hand-writing on the PM24 form could be his. Mrs Wager was not able to answer all questions satisfactorily under cross-examination.

36. The respondent submits that the applicant is not entitled to compensation under the Act, as his fractured left fibula condition did not arise out of or in the course of his service, including by reference to the former journey provisions contained in s 6(1)(b)(ii) of the Act.

    CONSIDERATION

37. I accept that the nature of the duties of the applicant would have required him to attend at the barracks on the weekend. However, I do not consider that there is probative evidence that the applicant injured his leg at the barracks or on a journey to work. In my opinion the most persuasive evidence is the PM24 form which the applicant stated in evidence that he signed on 19 May 1995. On that form there is a statement by the applicant: “Returning home from work i (sic) stepped over a bag and broke my leg”. In giving evidence the applicant stated that the handwriting on the statement which is above his signature is in handwriting that looks like his handwriting. I consider that a fair construction of the statement is that the injury occurred after the applicant returned home and was therefore not on a journey. The commissioned officer who signed the PM24 form certified: “Incident occurred whilst member was at home”. I consider that this certification by the commissioned officer would have only been made after a proper investigation and I place some weight on this in my finding.

    DECISION

38. I affirm the decision under review.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 31 October 2018

Date of hearing:

28 November 2017

The Applicant:

By video  

Applicant’s Representative: 

Solicitors for the Respondent:

Counsel for the Respondent:

Mr Kevin Winkleman

Australian Government Solicitor  

Mr Charles Clark