Watterson and Visionstream Pty Ltd (Compensation)

Watterson and Visionstream Pty Ltd (Compensation) [2019] AATA 5457 (18 December 2019)
Division:GENERAL DIVISION
File Number(s): 2016/2615 and 2017/3638
Re:Scott Watterson
APPLICANT

Visionstream Pty LtdAnd
RESPONDENT

DECISION
Tribunal:Member A Ward
Professor D Ben-Tovim
Date:18 December 2019
Place:Adelaide

The decisions under review are affirmed.
............[Sgnd]..........................
Member A Ward
CATCHWORDS
COMPENSATION – workplace injury – exposure to radiation – whether claimed condition arose out of or in the course of employment - liability denied – Safety, Rehabilitation and Compensation Act – decisions under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Member A Ward
Professor D Ben-Tovim
18 December 2019

The Applicant’s claim is that he sustained a workplace injury whilst performing his employment duties as a steel rigger on an antenna farm at Mount Burr in the south-east of South Australia.
The claim was for ‘Radiation (RF) Exposure’ to the head and body as a result of working on a mast on the site. A further claim was made that he suffered psychological injuries arising out of the same event. The precise dates of the injury are not clear but the Applicant submits that the exposures took place between 2 June and 16 June 2015.
The Respondent, Visionstream Pty Ltd, employed him and was licenced pursuant to the Safety, Rehabilitation and Compensation Act1988 as a self-insurer.
The Applicant was working on the main radio communications mast, plans of which indicate it was 172.82 metres in height. Visionstream Pty Ltd was installing a microwave link and panel antennas for Optus. This installation work was mainly at the 23-metre level on the mast.
There is no doubt that the Applicant and another person complained that a personal protection device, called a RadMan, activated when they were on the mast. That is, it emitted an alarm.
There is a dispute as to whether there was an actual event (or events) of radiation exposure and whether it gave rise to an injury to the Applicant. In making that determination, the credibility of the Applicant and the Tribunal’s ability to accept him as a witness is extremely crucial because this is not a matter in which there would be an obvious sign of injury (such as a broken arm after a fall) or something that could be verified on investigations such as x-rays.
His evidence was of a series of problems being caused by the exposure, being severe headaches, vision problems, dizziness, diarrhoea, anxiety, vomiting blood, being bed-ridden, and redness and scaly skin on his right hand.
The Applicant’s claim was limited by concession during the hearing to a closed period from the date of the exposure to 6 February 2017 when he commenced employment at another company.
When the Applicant attended the worksite on 2 June 2015, he undertook a safety induction procedure which included a guide to the mast, which in particular demonstrated four access zones pertinent to the mast. The white zone of the mast was able to be accessed at any time. On the documentation, this was the area of the mast between the ground and 28 metres.
The yellow zone, from approximately 28 metres to 35 metres, was a restricted area where access had limitation. But the RF Hazard Control document for the site said that in normal configuration authorised personnel could access ladders and platforms up to 34 metres.
There is a pink zone[1] which runs from 35 metres high to 40 metres high and it is also restricted. It can be worked on, but with high level personal protective equipment and services would need to be ‘powered down’. Then, there is a red zone where access is prohibited. This red zone runs from 40 metres to approximately 47 metres.
[1] Otherwise described as red and white cross hatched.
The zones were determined by a RF Hazard Survey. The work on the Optus antennae was undertaken in the white zone, at a height of 23 metres. Workers were not to exceed a height of 33 metres. This was specified in the safety induction conducted on 2 June 2015 by Mr Peter Becker, an employee of Broadcast Australia Pty Ltd. It indicates that to undertake work at the 23 metre level, it might be necessary to be above it.
The Applicant’s evidence is that in order to lift apparatus up the mast for it to be installed, a block and tackle pulley mechanism had to be attached to the mast so that a cable could be threaded through it and back to the ground, where a winch would raise the equipment as it was needed.
It was a matter of dispute in this case as to where that pulley was located and whether, to install it, the Applicant had to ascend to a horizontal beam immediately below the 36-metre level platform and located approximately 1 metre into the pink zone.
In working on the mast, the personnel would carry a RadMan which is a device to warn as to levels of radiation. The Tribunal heard evidence from several witnesses that a RadMan could give a false reading, thus sounding an alarm when there was no radiation present. This might be caused by proximity to other metals. The rationale being that it is better to have a false reading than not to pick up any radiation present.
The Tribunal also heard evidence that there could be adverse effects of radiation exposure and the person exposed might not be aware of that occurring. Thus, the significance of a RadMan or some other detection device.
Dr Bruce Hocking, a specialist in occupational medicine and extensive expertise in radio frequencies and the electromagnetic fields gave evidence that the effect of FM radiation exposure was to agitate water molecules in the body causing heating. He said this was not like touching a hot iron and immediately feeling a burn, but that the response was usually more subtle. He said one cannot rely on feeling hot as an indicator, and that ‘you cannot rely on a sense of warmth to tell you you’re exceeding the safety levels’.[2]
[2] Transcript, page 17.
ASSESSMENT OF APPLICANT’S EVIDENCE
The Applicant has given many statements pertaining to this matter.
The evidence of the Applicant is very important in the majority of cases such as these, but of crucial importance in this case because of the difficulty in diagnosis of the injury. It is a not a matter of an x-ray confirming a broken bone. Injuries caused by radiation exposure are difficult to assess by way of objective measures.
The Tribunal has significant difficulty accepting the Applicant’s evidence without corroboration, for reasons that are set out below. There have been instances of incorrect information being provided to treating doctors, to employers, and to doctors providing medico-legal assessments.
Pre-accident health
There is no doubt the Applicant would have to be fit to undertake the work of a rigger. However, the Applicant had medical problems prior to the events giving rise to these claims, but did not give proper account of these to medical specialists. Thus, they were deprived of the opportunity to look at pre-existing problems and compare them to problems that arose following the alleged exposure, and to provide their views. Had he mentioned these matters, the proper medical analysis could have been made at the time of consultation.
An example of information he provided to other specialists is that he was sent by his solicitors to Dr Bruce Hocking. Dr Hocking’s report dated 7 September 2016 states under the heading “Medical History”:
“Scott told me he had been very well and very fit until he commenced work on Friday 3rd June 2015 on the main radio communications mast at Mount Burr South Australia”.
He told Dr Pers on 21 June 2016 that “his general health has been excellent. He had a fractured right cheekbone some years ago”. Thus, he had turned his attention to his health some years prior to the incident.
Exhibit 3 is a medical history provided by the Applicant prior to his employment with the Respondent, filled out on or about 21 August 2014. In a section of that form, the Applicant entered his health history above a declaration which stated “I declare that I have answered the above correctly and completely, to the best of my knowledge. I understand any false or misleading information may result in disciplinary action, up to an including termination of employment”.
He responded “no” to the following questions:
“Are you currently being treated for any medical condition”;
“Do you expect to consult a doctor or expect to receive treatment in the near future?”;
“Have you ever been admitted to hospital?”;
“Have you ever had time off work for the last two years for illness or injury?”’
“Have you ever had a workers compensation claim or any work-related illness or injury”; and
“Have you ever had an x-ray, CT, ultrasound or MRI scan?”.
These answers were all incorrect and the pre-placement medical assessment should have been marked accurately with “yes”, in which case those issues could have been discussed.
On Friday, 22 August 2014, the day after that document was filled out, the Applicant attended his General Practitioner (“GP”) Dr Choudhary, and told him that for the previous couple of days he had been vomiting and had slight diarrhoea and “little bit abdomen pains”. He said it was not a sore throat, nor a cough, nor a cold. He said he had been getting reflux for the previous three months along with some abdominal pains.
In evidence, the Applicant agreed that on 21 and 22 August, the day that examination took place, he did not attend work because of a medical condition the prevented him from working. This information does not appear on the form. He admitted that he broke his leg in 2002 and was treated in hospital.
The Applicant was employed with a different company after arriving in Australia and prior to working for the Respondent. In the course of that employment, he sustained an injury to his knee and completed documentation for WorkCover, the workers compensation provider in South Australia. This was supported by a medical certificate from his GP and he admits he probably gave that to his employer.
When seen by his GP on 3 September 2014, the history was of the patient attending with MRI results which showed “ACL injury – chronic” but with the further notation “will see Workcover tomorrow”.
The Applicant stated he did not know what a worker’s compensation claim was. For this knee problem he saw the Orthopaedic Surgeon, Dr Herman, in September 2014.
All of that information would have been well within the Applicant’s knowledge when he filled out that medical history form, but rather he did it in a way which was incorrect and misleading.
The form also asked about employment history. He described himself “self-employed” for 15 years as a rigger. He did not refer specifically to his employment with his former employer. As a result, details of his employment could not be verified with them, which would include reference to the knee injury.
When asked why he did not inform Visionstream of having had an injury described as “a chronic right knee injury”, he said “I was never asked”. That is not an acceptable answer.
After commencing at Visionstream, the Applicant had further medical issues which were again inconsistent with the information he provided to doctors who examined him for the purpose of the claim, but more importantly so because they were similar to the injuries of which he complained as suffering from as a result of the alleged exposure.
He saw his GP on 30 December 2014, complaining of multiple problems which were not particularised in the notes, with the exception of right elbow pain.
On 11 February 2015, he saw his GP and gave a history of having not been feeling well and felt dizzy and lightheaded on the Friday (approx. 5 days before). On 13 February 2015, he attended to obtain details of tests taken previously and for chest pain. On 18 February 2015, he advised his GP he had been seen in hospital for cardiology issues. On 24 February 2015, he attended his GP because “still feels dizzy”.
Dizziness was again a problem in a consultation with the GP on 25 March 2015 and some sharp pain in his chest.
On 8 May 2015, he attended his GP with feelings of anxiety “from time to time” and a feeling that “he might be depressed”.
Therefore, there is a history of regular visits to the GP, to the Royal Adelaide Hospital and the Queen Elizabeth Hospital in the early part of 2015 for issues relating to dizziness and also possible cardiac issues.
The Applicant also attended the Medical Country Health Clinic on 9 February 2015, referring to a “funny turn” whilst at work climbing mobile phone towers. He said he started feeling “spaced out/dizzy” whilst working on the Sunday morning. That visit at the medical clinic was only two days after the onset of the “funny turn”.
These problems that were affecting him within months before the alleged exposure, resulting in visits to numerous hospitals as well as to his GP, were relevant to his pre-incident health, but were not conveyed to the doctors who were providing reports for the purpose of the claim.
Where did the events take place?
As noted, the dates when events actually occurred have varied, but the essential elements are the same. After the initial induction, which included pointing out the areas where the works were to be performed, it was clearly noted that the Respondent’s employees were to work at the 23-metre level. This is the position above the ground at which the antenna for Optus VHF was to be installed.
This area is within the white zone which was not restricted.
The Applicant has given differing accounts as to where he suffered the RF exposure.
In his initial claim for workers compensation dated 1 September 2015[3] the Applicant has stated that he suffered from radiation exposure and in response to a question asking “What is the exact location, within the above address, where the injuries/illness occurred?” with reference to the Mount Burr TV mast, he said “23 metres up mast”.
[3] Exhibit 1, at page 5.
In response to a question in his claim form to describe the sequence of events of the injury/illness, he said “Working up the mast at 23 metres when we were told the power had been turned off and it was still running at full power”.
Thus, the reference to 23 metres appears twice in the initial claim for compensation (The claim form also asked whether he had any similar symptom, injury or illness, work-related or otherwise and he indicated “no”. That answer was not correct. He did have similar complaints of symptoms only a few months prior to the accident, as will be discussed).
In another document prepared for use in these applications by the solicitor for the Applicant,[4] it states under the heading “Unfolding of events that led to Mr Watterson’s workplace injury”, that on “Day 1: 3^rd June 2015”, the Applicant had the site induction with Mr Becker and other personnel from Visionstream. He said that after the induction had finished, he commenced work and proceeded to climb the mast (tower) to measure up where work was to be done at heights of 23 metres. Whilst working on the mast, Mr Watterson began to feel symptoms such as “severe headaches and dizziness”.
[4] And thus presumably upon instructions.
It is not until a statement prepared and signed by the Applicant on 9 February 2017 that he stated that he worked at heights above 35 metres in order to install what he described then as “the horizontal steelwork necessary to lift the steel poles and antenna off the ground” - what has been described during the oral evidence as essentially a pulley.
The significance of this is that the higher the level, the more dangerous the zone, in terms of the RF Hazard Control document that had been prepared by Kordia Solutions following a survey of the Mount Burr site on 3 May 2013.
At that site, access between 34 metres and 62 metres is restricted, as has been previously discussed.
Initially, the Applicant’s case was that he was radiated at the height of 23 metres, which is in the “public zone”.
Because of the significant issues of credit, variations in his story which occur later that tend to support him working in a hazardous situation need to be looked at closely.
In this instance, the Applicant said that he had to construct the pulley at a height significantly above the work area. He eventually referred to having to construct this pulley on the platform at the 35-metre mark. The Tribunal finds that this was a post-incident reconstruction on his part. There is significant evidence that there was no need for the pulley to be so high above the construction site at 23 metres set out in the plan. The evidence supported the fact that to do so would actually cause problems because the pulley would be in the area of other masts and antennae and would risk becoming befouled.
If the Applicant was working in that area of the 35 metre mark, he would require specific and important personal protective equipment to do so as well as arrangements regarding the power levels in the tower. References were made to the fact that he was an experienced rigger. In the circumstances, it does not make sense that he would suffer himself to work in such conditions without the personal protective equipment. The Tribunal finds that that evidence was manufactured by the Applicant in order to support his case.
The Respondent acted appropriately on the advice that the RadMan had activated. Mr Cathro ascended the tower and tested the area as noted. Mr Becker attended the Mount Burr Broadcast site to investigate “a reported high radiation levels at the lower levels of the ... broadcast mast.” He did not measure or confirm the report, but appears to have initially accepted it to be accurate. He was not called to give evidence.
Mr Becker provided a later email on 13 November 2015 in which he said he had been advised that the RadMan was triggered (at the relevant time) due to incorrect settings and that following rectification ‘there have been no issues at 25m’.
Whether this assists or not without further explanation from him is an issue, but the Tribunal accepts the evidence of Mr Anderson and others that the RadMan can give incorrect readings. The RadMan issuing a warning means that the operator ‘would need to ascertain that it was true’.
Symptoms from the incident
There is an inconsistency with regards to the onset of symptoms, as distinct from the RadMan sounding an alarm.
The Applicant’s narrative was that he was aware of symptoms when first working on the tower on 3 June.[5] He said this prompted him to ask others to inquire about RF.
[5] Exhibit 1, page 56 headache after being on mast on 3^rd June for 15 minutes that was ‘really bad’ and still ‘quite severe’ the next day.
It appears that the actual timing of the events has been corrupted to a degree in the various statements that have been provided. That is, there are events which definitely occurred, but the precise day they occurred is not clear. To a large degree, a mistaken day of an event does not mean it did not occur.
The induction was on 2 June, which was a Tuesday.
In the Applicant’s first statement[6] probably prepared on 25 June 2015, he stated that he arrived at the site on 3 June for the induction (which was on 2 June). He said that shortly after the induction he went up the tower on his own to measure the height. He said that after 15 minutes up the mast he started to get a headache. He said that by the time he climbed down on finishing his work, his headache was “really bad” and he told Jason Cathro how bad his headache was and that he needed to find out about the radiation.
[6] Exhibit 1, page 56.
This was specifically denied by Jason Cathro. Mr Cathro said in his evidence on cross-examination that there was no report of symptoms.
The Applicant said in his evidence that the first time he climbed the mast, after about 15 minutes, he felt headaches, face tingling and pain in his eyes. He said he had never experienced that before. It is odd therefore that the Applicant did not seek any treatment for this condition when it first occurred.

Mr Cathro did say there was a report by the Applicant of the RadMan giving off a reading at some point, and that he acted upon it.
The Applicant told the Tribunal that on Thursday 4 June he returned to the site and was working on the ground, but he says the headache was still quite severe. He said he then went back to Adelaide where he would have been from the evening of 4 June to Wednesday, 10 June. He could have seen his GP, and as noted above would see him for various medical problems before this incident.
There is a very vague reference to him having a discussion of sorts with a person called Helen, but there was no specific evidence of this. There is no contemporaneous complaint to a doctor of him suffering those pains that he said he had never had before and felt for the first time within 15 minutes of climbing the tower. On Saturday 14 June, the Applicant stayed in Mount Gambier and there was no evidence of him seeking medical treatment at that stage, although for the purpose of his claim he said he did not feel “too good, dizzy – nausea” at this time.
The Applicant did not see a doctor until 18 June 2015, when he saw his usual GP. He says the reason for not seeing his GP sooner is that he could not get out of his bed for two days. However, from the earlier experience when he had what he thought were cardiac issues, there was no suggestion that he could not seek treatment from his GP or at one of the major hospitals in the Adelaide area, or call a locum. His wife was not called to corroborate any evidence or allegation of these early effects.
The Applicant has made specific allegations that he discussed those pains with Mr Cathro when they occurred on site. Mr Cathro denied receiving a complaint about headaches or anything else.
When complaints were made regarding the RadMan going off, Mr Cathro ascended the tower to test the radiation using the procedure of holding the RadMan on a pole to keep it away (as far as possible) from any other interference. He found the area in which the workers were operating to be clear of radiation.
More importantly, Mr Cathro was not aware of any symptoms himself, working in the same place as the Applicant over the same period.
In the document filled out by the Applicant on 25 June 2015, he said that after Mr Cathro had carried out his testing on the tower, he came down and removed his full face balaclava. The Applicant went on - “We could see his face was badly burned and myself, Dimmy and Jasper said he didn’t look good. He was concerned and said that if it was like that Monday he would stop the work”.
In a document prepared by Mr Cathro, he referred to the fact that he was on the tower, probably on Thursday 11 June, and that when he came down from the tower the Applicant said that his face was red. The Applicant said that it was the “RF that made it go red”. Mr Cathro attested to the fact that at the time he told the Applicant it was wind burn and the Applicant argued with him on that point. In his sworn evidence, the Applicant said that Mr Cathro told him that he had tingling and headaches, but Mr Cathro denied that.
Mr Cathro prepared a number of statements and one which arose out of an interview on 9 October 2015 stated that he suffered no ill-effects as a result of his work on the tower. He said:
“A report was made that my face was burnt but this is incorrect. The weather was bitterly cold and I may have suffered a bit of frostbite on my face but not radiation burns”.
He went on to say that in the period after the Applicant left his employment, and replacement riggers had to come in to finish the job, that:
“Neither myself nor the two replacement riggers suffered any ill-effects from radiation, as I have said I spent more time on the tower than anyone and was perfectly alright. I would not put any employee of the company in an unsafe situation.
Why that is important is because in the medical report obtained from Dr Pers as a result of his examination of the Applicant on 21 June 2016 (a year after the incident), there was the history that:
“Co-workers had also developed similar severe symptoms, one of them eventually refusing to return to work at the tower as he was quite unwell with severe nausea and headaches. Another worker also had severe burns to the face from the effect of radiation…” (Emphasis added)
That assertion was challenged instantly by Mr Cathro when the Applicant made it to him. Yet, the Applicant has repeated it as a specific instance of corroboration that he was exposed to radiation.
If there is any doubt, there is reference in a further statement provided by Mr Cathro dated 30 October 2015 in which he stated:
“During the time when I was working on the tower I did not complain to the others of radiation burns or sickness. My face was red from wind burn as I was not wearing my balaclava on the tower at all times. The claimant tried to convince me it was radiation burns, but I knew that it was not”. (Emphasis added)
The Applicant refers to a series of text messages sent between himself and Mr Cathro in the period following what he says was the initial exposure and his return to work.
This is put forward on the basis that Mr Cathro supported the fact that he was concerned about RF exposure himself. The dates of the exchanges are not clear, but the text of the exchanges confirms the finding of the Tribunal that the Applicant was pushing a version of events at a very early stage which was inconsistent with what other people were saying to him. A text put forward as coming from the Applicant to Mr Cathro states:
“U even said u felt it tingling in your face and head Peter told us we shouldn’t be going up until it was an for outage u were even worried when your face was red and all wouldn’t have felt like that if there was no RF we had done most of the tower work before we said we didn’t want to go back up.”
Mr Cathro responded to this text saying, “Yes I was worried but until I saw the video I had no concerns after that”. That is not what the Applicant reported to doctors, as noted above.
The Tribunal also had information of sorts from another co-worker, Mr Dimitrios Alexiou. It is accepted that Mr Alexiou complained about the RadMan going off - that was confirmed by Mr Cathro, but there was no evidence from Mr Alexiou in the form of a signed statement, nor oral testimony. There is an unsigned statement in Exhibit 1, but it is not clear who prepared it and it is certainly not signed by Mr Alexiou. The Tribunal was advised at the commencement of the hearing that the Applicant would not be calling him as a witness and so this evidence was treated very cautiously.
In view of the Applicant’s attempt to convince Mr Cathro that his red face was due to radiation exposure, and his reference to that as further evidence of the radiation exposure to doctors he has seen for the purpose of this claim when he knew it was a matter disputed by Mr Cathro, the evidence from Mr Alexiou who could not come to the Tribunal must be treated carefully. It appears Mr Alexiou left work on Tuesday, 16 June. They were going home due to the weather conditions. He was in dispute with the Respondent as to his working on the tower, so there was tension at the work site. The unsigned statement attributed to Mr Alexiou states that he had a panic attack driving home and was taken to hospital where he received attention and regular checks until midnight, diagnosed with “a panic attack induced by stress”.
This contrasts with the history provided to Dr Choudhary, the Applicant’s general practitioner, on 18 June 2015 during the first recorded visit to a doctor following the incident. It states: “One of the workers ended up in hospital with radiation poisoning”. That is not correct, but along with the reference to Mr Cathro’s red face, it has relied upon as corroborative evidence presented by the Applicant to show that if these problems occurred to others, they must have occurred to him.
Another example of this misstatement occurred when the Applicant sent a text to Mr Cathro saying that he was not sure whether Mr Alexiou was out of hospital yet as he was taken to hospital the night that they got back to Adelaide from the Mount Burr site. According to the texts, Mr Cathro asked: “What’s he in there for?” and the answer from the Applicant was “He took ill when he got home and his sister took him in with the RF”. As noted, that is not correct. He was hospitalised due to a stress reaction.
Another injury which the Applicant has complained of was to his right hand. He said it was discoloured and then formed a rash. Indeed, some medical practitioners who had seen him had seen a rash.
Dr Hocking referred to that rash as unusual. He relied on the finding of redness on the right hand “which came on at the time of working” to be an important element in his reaching a conclusion that the Applicant suffered from radiation exposure.
However, in addition to the rash being unusual, he also found that “if it was a medically oriented type of condition you would have expected it to be in both hands” and he went on to state “I construed that it was somehow associated with his overexposures to RF and that this related to the way his hand would have been gripping metallic structures on the tower and also the metal parts that they were bringing up from the ground … they were possibly charged from the radio frequencies and that they had an injurious effect on the hand.”
The Applicant said that he did not use a glove on his right hand - due to the need for dexterity presumably. He described the condition of his hand when he first saw his GP as red, then it got worse, with flaking. He said it was “all red, you know, quite sore”. The GP prescribed him some cream.
However, the GP notes had no reference to right hand symptoms at all on the first consultation on 18 June.
It would appear that Celestone cream was prescribed by the GP after the consultation on 22 June 2015. However, there was no specific reference to a hand problem in the notes.
The Applicant’s evidence was that it was only the right hand that was affected. He said it went red and then dermatitis developed.
Referring again to the report of Dr Pers following an examination on 21 June 2016, he noted “ongoing dermatitis on both hands, right more than left, caused by the effects of radiation”. That is the Applicant’s own self-diagnosis, rather than a diagnosis of Dr Pers. The doctor noted “clearly visible scaling on the palms on both hands” which he then related to burns on both hands with scaling.
The Applicant’s hand was not burnt. The Tribunal heard evidence that the effect of the radiation exposure is not to burn but to cause internal heating. Therefore, there is cogent evidence that at some point following the incident the Applicant had dermatitis on both of his hands. Maybe he still has dermatitis on the right hand. The cause of it is by no means clear. However, the Applicant has directly linked this to burns caused by radiation and doctors have accepted it without any further investigation or analysis.
Dr Hocking said in evidence “The right hand is a puzzle as to why it came up, and my thoughts are, and to some extent this is speculation, is that it relates to contact currents from the steel members of the structure, affecting the bare hand of the right hand.” Thus the evidence of these specific symptoms is on analysis very weak and speculative, and does not prove nor explain:
(i)that he was injured in the hand at work
(ii)that if it did, this proves radiation was the cause and
(iii)that the hand symptoms prove the alleged radiation and
(iv)What happened to the left hand at the time of the Pers’ examination.
The Applicant has also referred to vision problems. Burning in his eyes is referred to as a symptom arising from the exposure. He told Dr Hundertmark that “he sustained significant visual damage from being on the tower” and that his eyes were ‘burnt out’ and that he could not recover from that injury.[7]
[7] Transcript p 442
He said his eyes were tested and he was told that his “corneas were gone”. He also said – presciently – “Visionstream denied that”.
The Applicant’s solicitors sent him to see the eye specialist, Dr Nave, to prepare a medical report for use in these applications and eventual proceedings. Dr Nave did not give evidence but his report dated 27 April 2017 arising out of an assessment the day before was received.
The Applicant’s history to Dr Nave was that since the alleged exposure he “has continued to suffer from malaise with impaired vision, headaches, nausea and dizziness”.
The doctor formed the opinion that whilst the examination revealed very marked impairment of visual acuity in both eyes and bilateral visual fields, he strongly suspected that “Mr Watterson is exaggerating his visual impairment and that any visual impairment resultant from the radiation is significantly less, or possibly non-existent”. He further advised the Applicant’s solicitors that “I therefore believe it is highly probable that Mr Watterson is grossly exaggerating any impairment of visual function resultant from the radiation”.
The Tribunal finds this to be the case regarding the Applicant’s eye symptoms.
The Applicant told Dr Hundertmark when he saw him on 14 May 2018 that after returning to Adelaide he was in bed for four or five days and suffered headaches, pain in the eyes, pain in his stomach, and that he vomited blood. He could not say whether that was red blood or dark blood. He said it occurred once or twice a week. He said there was quite a lot of blood. There was no reference of this made to the GP but it certainly paints a picture of serious injury, which presumably was the intention. His wife was not called to corroborate what would have been distressing symptoms.
The discussion with Dr Hundertmark also included that with regards to motorbikes, he would build them previously in his workshop. He referred to being panicky when driving and anxious in cars coming out of side streets – although this has nothing to do at all with his injury.
On 4 December 2017, the Applicant saw Dr Chan for the purpose of a medico-legal report. The description of the events on what is most likely 15 June 2015 is much more severe to Dr Chan. He said that he was feeling increasingly sick, which headaches, nausea, and then vomiting. Although the dates are vague, there is reference to the Applicant reporting going home to Adelaide. When he got back, he presented to hospital due to ongoing vomiting and was admitted for a few days. There is no evidence of that whatsoever. He could not have simply been mistaken. It is a misrepresentation to exaggerate the effects of the incident for the purpose of the medico-legal report. The report also noted that the skin rash was affecting his right hand only, which is inconsistent with the observations of Dr Pers, as noted above.
He specifically told Dr Hundertmark that “He did motor bike racing up until the index incident. He said that he rode bikes at a high level”.
He saw Dr Chan on 4 December 2017 and said he had not ridden motor bikes since the injury and that he had subsequently sold all his bikes for financial reasons.
The clear impression left on medical practitioners was that after the injuries he could not ride motor bikes.
During the course of the hearing, the Applicant was not in the Tribunal when the expert witness Dr Hocking was interposed to give evidence. At some point, the Applicant become aware of some comments made by the Respondent’s counsel as to matters of credit (which were relevant to his not being in the hearing room when the witness gave evidence). He told the Tribunal that he wondered what those comments were and said that he looked at his Facebook and saw a reference there to him riding motor bikes after the incident that gives rise to the claim. Subsequently, he sent information to the Tribunal Registry, with a request to print out the information relating to his use of high-performance motorcycles following the incident.
These clearly show him entering competitions in late 2015 and early 2016. The latter being quite extensive, with him undertaking laps of the motorcycle circuit at Phillip Island in Victoria over some days, with lap speeds in the vicinity of 280km/hr.
To undertake those motorcycle activities, he had signed documents to the effect that he had no incapacities that would affect his ability to do so.
He said that he was advised by a psychologist to undertake activity. That advice came after he had already undertaken the activity.
The clear impression he was leaving on the doctors for medico-legal purposes, examples of which are noted above, was impossibly inconsistent with the fact that he rode large, high-performance motorcycles at very high speeds in exacting conditions. He was alleging to all doctors that he saw following the incident that he had a significant physical disability. In his evidence in chief, he referred to his high level of fitness before the injuries because he had raced motorbikes for years and was fit enough to do that. However, he was clearly able to do that following the accident as well.
When he was cross examined as to the organised motorcycle events post incident, his initial answer was that he had only done one lap which he mentioned several times in evidence. It might be he only undertook one lap on one occasion in October 2015, but he undertook far more extensive riding in the 2016 event.
Had the Tribunal not had access to the records, it might have been left with the impression that he had only ridden one lap in the high-performance ride, but that was just not the case.
He actually did ride motorcycles, having signed documents to the effect that he was quite fit to do so, and not reporting to any doctor contemporaneously any exacerbation of his symptoms, whether emotional, visual or physical, as a consequence of doing so. He has posted photos of himself on Facebook following the period of the alleged injury, which are consistent with his participation in those events.
He had attempted to mislead the doctors and the Tribunal for the purpose of his claim.
Post-incident employment
The Tribunal proceeded on the basis that he had not actually worked following the incident in 2015. Thus, again, Dr Chan’s report from December 2017 stated that he had not worked since his claimed injury in June 2015. However, that also is incorrect. As the Applicant has conceded in closing submissions, his claim is for a closed period from the date of the incident up to 6 February 2017 when he commenced working for a new employer. Indeed, after commencing work with the new employer, he suffered an injury to his knee which is the subject of another workers compensation claim. He referred to that injury to Dr Chan, but not to it arising out of a compensable work incident, rather stepping off a kerb.
The Applicant confirmed this information about work to Dr Chan, namely that he had not worked since the incident in June 2015 due to a combination of visual disturbance, light-headedness, fatigue and headaches. He had to sell his motorbikes to provide sufficient finances for him to live on. It makes no sense why he would want to convey the impression he had not worked at all and that the alleged injuries from the radiation exposure were to blame for this. It is just not true.
The Applicant had a Workers Compensation claim for an accident he suffered at his subsequent employment after he commenced working there chronologically following this incident.
Evidence was put before the Tribunal as to irregularities with that claim, and in particular, an allegation that the Applicant had forged a Workers Compensation certificate. It seems though that these allegations were not fully investigated (presumably due to the Applicant leaving the country). Whilst this information was before the Tribunal, it has not been relied upon for the purpose of the credibility findings in these Reasons. The evidence was not clear enough on the serious allegations.
Psychiatric Injury

The Applicant made a later claim that he suffered a psychological sequelae from the work at Mount Burr.[8]
[8] Claim form 23/12/16.
Evidence was provided from Dr Hundertmark, psychiatrist, and Ms Stevanovic, psychologist.
Ms Stevanovic diagnosed Post-Traumatic Stress Disorder (PTSD) but her notes do not support him complaining the relevant symptoms one would associate with that diagnosis. Dr Hundertmark did not consider PTSD to be a diagnosis in this case, accepting what the Applicant described as correct.[9] He provided detailed evidence on the events that were described as occurring and the operation of DSM-V and considered that the PTSD diagnosis could not be made.
[9] Transcript, page 445.
In any event, whatever the medical practitioners consider to be the appropriate diagnosis has to be significantly affected by the finding that the Applicant was exaggerating his symptoms, and the cause of them, and the effect of them. Medical practitioners acting in good faith treating him or making assessments for medico-legal purposes do the best they can on the information provided to them. If the information is not correct then their diagnoses are of no assistance to the Tribunal, and that is the fault of the Applicant.
The Tribunal finds that in the differing views expressed by Ms Stevanovic and Dr Hundertmark, Dr Hundertmark’s view should be preferred. Dr Hundertmark’s views, as expressed in the report, are “a mild adjustment disorder with anxiety, at most, in response to the reported stressor”.[10] These views are of guidance to the Tribunal, but not binding upon it. The finding of the Tribunal is that there is insufficient factual basis to support the claims that there was exposure to radiation, or that the Applicant suffered any physical injuries, and thus suffered any reactive psychiatric condition as a consequence.
[10] Exhibit 7.
Overview
The matters raised here are not an exhaustive list of the concerns the Tribunal had with regards to the Applicant’s evidence. He was argumentative under cross-examination and had to be asked repeatedly to listen to questions and answer them without being argumentative. The effect of his exaggeration of symptoms or events to doctors thwarted the process of the decision-maker. This is a system designed to compensate people for injuries they sustain. Here, the medical assessments cannot be relied upon as the basis for a proper diagnosis of cause of injury without significant scrutiny.
The Applicant’s evidence cannot be relied upon without substantial corroboration. There was no compelling explanation given as to why Mr Alexiou could not give evidence, or provide further statements. Most of the witnesses provided multiple statements.
Mr Cathro presented as a reliable witness. His evidence was consistent on the major issues. The other lay witnesses who gave evidence did their best to assist the tribunal, and their evidence was again consistent on the major issues, if more general in nature.
There was no explanation given as to why the Applicant’s wife could not have provided a statement as to her observations of him in the early period following the incident when he returned to Adelaide suffering symptoms that he said he had never suffered before. Surely, he would have mentioned it to her and surely she could have given evidence of him staying in bed, or explain why she did not drive him to the hospital or doctor at that early time. She could have confirmed his allegation of vomiting blood, and the onset of his red right hand, problems with vision, and his emotional injuries.
The Applicant’s evidence was insufficient without accurate corroborative evidence to prove his case both as to event occurring and the injuries alleged.
For the reasons set out above, the Tribunal affirms the reviewable decisions dated 22 March 2016 and 9 May 2017 pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act1975.

I certify that the preceding 133 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member A Ward and Professor D Ben-Tovim

........[Sgnd]........................................
Associate
Dated: 18 December 2019

Dates of hearing:
29 July 2019 - 2 August 2019, 11 September 2019

Counsel for the Applicant: Mr George Stathopoulos

Advocate for the Applicant: Mr David Gardner

Solicitors for the Applicant:
PGC Legal

Counsel for the Respondent:

Advocate for the Respondent:

Mr John Wallace

Ms Claire Tota

Solicitors for the Respondent: HBA Legal

[2019] AATA 5457

18 December 2019

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Duty of Care

Expert Evidence

Negligence

Statutory Construction

Dates of hearing:	29 July 2019 - 2 August 2019, 11 September 2019
Counsel for the Applicant:	Mr George Stathopoulos
Advocate for the Applicant:	Mr David Gardner
Solicitors for the Applicant:	PGC Legal
Counsel for the Respondent: Advocate for the Respondent:	Mr John Wallace Ms Claire Tota
Solicitors for the Respondent:	HBA Legal