Wesner and Comcare - [2000] AATA 164

DECISION AND REASONS FOR DECISION [2000] AATA 164

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. Q1994/477

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JO-ANNE WESNER
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date3 March 2000
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  (Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
COMPENSATION – revocation of earlier determinations – subsection 62(1) of Safety Rehabilitation and Compensation Act 1988 – hypertrophic non-union – was this an injury for the purposes of the Act – incapacity for work.
Safety Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 62(1), 62(5)
Compensation (Commonwealth Government Employees') Act 1971 s 7, reg 11

REASONS FOR DECISION

3 March 2000 Deputy President DP Breen, Presidential Member

This is an application for review of a decision by Comcare on 8 February 1993, which was affirmed by an Independent Review Officer on 10 June 1994. The decision was to cease benefits for the applicant's injury sustained on 15 January 1985 and to revoke all earlier determinations in her favour and to seek recovery of monies paid pursuant to them. The applicant does not take issue with the cessation of benefits, but appeals the revocation of all prior determinations.
This matter was heard before me in Townsville on 26, 27 and 29 May 1997. It was continued in Brisbane with the applicant via video link from Sydney on 10 July 1998 and again on 30 September, 1 and 2 October 1998.
The applicant represented herself in Townsville but was represented by Mr K Newell of Counsel on 10 July 1998 and by Mr A Scotting of Counsel for the remainder of the hearing. Both Counsel were instructed by Messrs Turner Freeman, Solicitors. Ms C Holmes of Counsel, instructed by the Australian Government Solicitor, represented the respondent.
This has been a long and involved case. During the course of proceedings, oral evidence was given by the applicant, Federal Agent Andrew Hughes, Dr Douglas Seaton, Dr John Allman and Dr Bruce Low. Extensive documentation was also tendered into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Letter to Dr Seaton from Ms Wesner
Exhibit 3 Two life reading leaflets
Exhibit 4 Two folders of Documents
Exhibit 5 Audiocassette recording of interview between Federal Agent
Hughes and the applicant on 3.2.93 and transcript of same
Exhibit 5A Transcript of interview between Federal Gents Hughes and the
Applicant on 4.2.93
Exhibit 6 Department of Housing and Construction identification card in
the name of Dinere
Exhibit 7 Advance bank term deposit receipt
Exhibit 8 Photocopies of 4 commercial and banking record documents
Seized by Mr Hughes but recovered for the purposes of these
Proceedings from the file of the DPP
Exhibit 9 Westpac bank records
Exhibit 10 Copy of Endorsement dated 6.7.92
Exhibit 11 Small set of clinical notes from Mt Wilga
Exhibit 12 Complete Mt Wilga file
Exhibit 13 Letter dated 14.3.97 from Mr Bishop to Dr Seaton with summons
to produce documents plus letter dated 20.3.97 from Dr Seaton
to Australian Government solicitor
Exhibit 14 Letter to Dr Allman from Ms Wesner – undated
Exhibit 15 X-ray report dated 22.1.89
Exhibit 16 Report of Dr Allman dated 22.1.85
Exhibit 17 Report of Dr Kennedy – Orthopaedic Surgeon dated 12.4.82
Exhibit 18 Teachers Certificate – State of Florida
Exhibit 19 Letter from Department of Environment and Planning NSW
dated 13.1.81
Exhibit 20 Volume of Income Tax Returns
Exhibit 21 Medical history of Ms Wesner
Exhibit 22 Copyright development taxation reports 1981, 1994
Exhibit 23 Bank deposits 18 December 1987 to March 1993
Exhibit 24 Triplicate copy of Authority for treatment/service 21.6.85
Exhibit 25 Letter from Australian Taxation Office dated 11.9.98 and letter
from Ms Wesner to the Australian Taxation Office dated 22.7.97
Exhibit 26 Lake Environmental Analysis
Exhibit 27 Article from Chicago Tribune
Exhibit 28 Letter from Mrs Sullivan to Mr Reid
Exhibit 29 Letter from Ms Wesner to Mr McCullough
Exhibit 30 Transfer of term deposit 19.4.89
Exhibit 31 Letter from Ms Wesner to Mr Aylwood dated 11.12.89
Exhibit 32 Medical reports from Dr Low
Exhibit 33 Medical report of Dr Clark dated 6.5.93

The relevant legislation is the Safety Rehabilitation and Compensation Act 1988 and is as follows:
"14.(1)          Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…..
4.(1)     In this Act, unless the contrary intention appears:
"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;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
…..
62.(1)   A determining authority may, on it own motion:
(a)       reconsider a determination made by it; or
(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
…..
(5)       Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit."

Due to the timing of the alleged incident, Regulation 11 made under Section 7 of the Compensation (Commonwealth Government Employees') Act 1971 is also of importance.
"7(1) Subject to this section, this Act applies to and in relation to a person who is employed by the Commonwealth or by a prescribed authority of the Commonwealth whether he is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship.
…..
(5)The regulations may provide –
(a)that a person who is included in a prescribed class of persons, being a class of persons who engage in activities or perform any acts at the request or direction, for the benefit, or in pursuance of a requirement made by or under a law, of the Commonwealth, or at the request or direction, or for the benefit, of a prescribed authority of the Commonwealth, shall, for the purposes of this Act, be deemed to be employed by the Commonwealth or by that authority, as the case may be; and
(b)that the employment of the person shall, for those purposes, be deemed to be constituted by the performance by the person of such acts, or of acts included in such classes of acts, as are prescribed."

Regulation 11 is in the following terms:

"(1) Each class of persons specified in the first column of the following table is prescribed for the purposes of paragraph (a) of subsection (5) of Section 7 of the Act and each class of acts specified in the second column of that table opposite to the reference of a class of persons in the first column is prescribed in relation to persons included in that class of persons for the purposes of paragraph (b) of that subsection:
First Column – Class of Persons
Persons receiving treatment or training provided or arranged by the Director-General of Social Services in pursuance of Section 135 of the Social Services Act 1947-1971.
Second Column – Class of Acts
Acts performed in the course of receiving the treatment or training."

Therefore, the issues requiring determination are as follows:

Was Ms Wesner an employee for the purposes of the Act?
Did she sustain an injury as defined by the Act?
Did this injury (if sustained) result in an incapacity for work?
Did the incapacity result in a compensable loss?

The applicant's claim is that the answer to all those questions is "yes" and she seeks a determination to the effect that she was entitled to compensation under Section 14 of the Safety Rehabilitation and Compensation Act 1988.
Was Ms Wesner an employee?

Regulation 11 deems Ms Wesner to have been an employee at the time of the alleged incident as she was receiving treatment at Mt Wilga Rehabilitation Centre to assist in her employment prospects as required by the Department of Social Security.
Did Ms Wesner sustain an injury as defined by the Act?
Ms Wesner sustained a fractured right tibia and fibula on 18 January 1982 during an assault inflicted upon her in Chicago in the United States. She subsequently emigrated to Australia and was treated by Dr J Allman. At this stage the fracture of her fibula had healed well, but the tibia had not. To assist in healing Dr Allman operated on 2 November 1983, to separate muscular adhesions at the fracture site, and again on 18 July 1984, to remove ender nails.
In October 1984 the applicant began therapy at Mt Wilga. Although in her evidence she described her leg as feeling "wonderful" and being "pain free" after the July operation, the occupational therapy notes record stiffness and pain in her leg and her capacity to walk being limited to half an hour at most. The physiotherapy notes also refer to "a stiffness" in the ankle.
As a part of her treatment the applicant participated in physical fitness classes. This usually involved walking on the grass oval. It is the applicant's case that on 15 January 1985 she tried running which she had been advised to do when she felt strong enough. Ms Wesner gave evidence that her foot got caught in an indentation and she felt a cracking sensation. This is the incident for which Comcare initially accepted liability and revoked such acceptance on 8 February 1993.
Ms Wesner's evidence was that as far as she knew the tibia had healed and that this was a re-fracture of the bone. She did not seek a medical assessment of her leg on the day in question because she hoped it was just a minor hiccup in her recovery. Further, she was very busy with lawyers who were gathering evidence for a court case in America relating to the initial assault in 1982. She claims she saw Dr Allman on 22 January 1985 and he took an x-ray of her leg and told her there was a re-fracture. She then went to Dr Seaton on 5 February 1985 who confirmed that there had been a re-fracture of the tibia at the initial fracture site as a result of the incident on 15 January 1985. Ms Wesner said Dr Seaton had been informed of the incident on 15 January by the physiotherapist before she saw him in February.
Dr Seaton's evidence to some extent agrees with Ms Wesner's but there are some marked divergences. Dr Seaton in his evidence stated:
"She was indeed running on wet green grass and her leg snapped and I saw her on 15 January 1985 and felt that something must have gone wrong so I x-rayed her on 22 January 1985, and it was found that she had sustained a fracture of the right tibia and fibula through the original fracture site when she had been running on the grass."
[page 38 Transcript]

Further, at pages 52 and 53 of the Transcript, Dr Seaton admitted that he did not actually examine Ms Wesner on 15 January 1985; that he had made a short note that "she seems well" when she had stopped in for a quick chat that day, and that he had not ordered the x-ray or performed them. He was, however, adamant that a re-fracture had taken place. It is important to note that no x-ray in 1985 showed that the fibula had re-fractured.

Dr Allman also gave evidence. He examined and x-rayed Ms Wesner on 22 January as a part of the gathering of evidence for the American law suit. The x-ray report contained the following comments:
"A fracture of the distal shaft of the fibula has healed with minor deformity. At the tibial facture site considerable callus formation is present but there is also a moderate degree of rarefaction present suggesting that union may not be solid."

Dr Allman had noted at the bottom of the report that this was a hypertrophic non-union and issued a certificate on the same day which refers to an ununited fracture, rather than a re-fracture. After questioning by Ms Holmes, Dr Allman admitted that though he may have used the term "re-fracture" when talking to Ms Wesner, that was not actually the case. He concluded that this was a case of at most a fibrous union which gave way, or the breaking down of poor callus due to general weight-bearing activity. Further, Dr Allman stated that a re-fracture would be experienced by an acute onset of pain and immediate disability. This is in contrast with Ms Wesner's description of the incident.

Dr Low, an Orthopaedic Surgeon from Townsville also gave evidence. He has been treating Ms Wesner since 1993. When asked to comment on the x-ray and report dated 22 January 1985, he stated that it was his opinion that there was a delayed union or a non-union at the tibia, essentially a fibrous union. He believed that because of the position of the initial fracture and the fact that the applicant was post-menopausal, it was more likely that it would be difficult to achieve union. Under cross-examination he observed that even today the tibia is not completely united. In re-examination it was his opinion that there had been a delayed union all along and the fracture had never really healed.
One further evidential point of significance is Exhibit 14 which is a letter written by Ms Wesner to Dr Allman shortly after the x-ray on 22 January 1985. The letter poses a number of theories as to why there was a non-union in the tibia. It does mention the 15 January incident but not as the specific event the applicant now asserts it to be.
The Tribunal places more weight on the contemporaneous documentation of the event than on the later oral evidence of the people involved. Dr Seaton's evidence on the whole is quite contradictory and appears somewhat biased in favour of Ms Wesner. His dealings with her, outside of the strict doctor/patient relationship, included endorsing her books and becoming one of her research subjects. His willingness to write medical certificates for her without having examined her, reflect negatively on his reliability as a witness in this case. Both Dr Allman and Dr Low presented themselves as credible and reliable witnesses.
On the basis of the medical evidence, it appears that there was a hypertrophic non-union at the time of the 15 January 1985 incident and not in fact a re-fracture. Rather, there was a giving way of poor callus which would have resulted from any form of weight-bearing activity and could have occurred at any time. The 15 January incident may have contributed to the giving way, but it is not a determinative cause.
In consideration, then, of the legislative provisions, this is not a new injury or an aggravation of an injury but rather a natural and expected progression of a hypertrophic non-union during the healing process. Further, the giving way of the poor callus cannot definitively be said to have arisen out of her employment – that is, her treatment; it was the persistence of a non-union which had existed since the initial incident in 1982. Therefore, this is not a compensable injury under the Safety Rehabilitation and Compensation Act 1988.
Was Ms Wesner incapacitated for work?
On the evidence, Ms Wesner's leg was not put into plaster after the 15 January incident. In fact, she spent the next week attending meetings with lawyers. During February and March 1985 she experienced what is known as spontaneous healing so that surgery which had been set down for July 1985 was cancelled. In August 1985, Ms Wesner says she again felt an increase in pain in her leg but the only treatment given was more physiotherapy. In September 1985 she began some work experience programmes, and, although she had some problems with travelling, she was able to do telephone interviewing from home quite effectively.
In 1986 she travelled to Melbourne to do some research through ANOP Market Research and to do some work for CSIRO on her research project. By March 1989 she had moved permanently to Queensland. While in Queensland she continued to conduct research, write books, articles and course materials and keep track of her publishing and distribution activities. Between 1989 and 1993 she also engaged in the restoration of her property in Cooktown. This involved the terracing of the slopes and the cultivation of paperbark trees for covers for her books. Although others carried out the heavier labour, Ms Wesner actively participated in clearing out the debris and weeds and planting new trees.
At no stage was she physically inactive. Both Dr Low and Dr Clark took the view in 1993 that she was quite capable of activity of the type she was actually carrying out, provided that she did not have to travel too far to her place of employment. As such, it is clear on the evidence that she was not incapacitated for work because of her leg condition.
Compensable loss?
The Tribunal is of the view that any loss of function of the leg, and thus any resultant incapacity, whether for work or otherwise, are wholly attributable to the incident in Chicago. My view, on the evidence, is that no aspect of her employment, or anything undertaken pursuant to it, played a contributing role to her incapacity.
Reluctant as I am to affirm a decision to recover benefits paid to a citizen in consequence of a decision of a person lawfully empowered to make such a decision, the fact remains that it was made on information provided by Ms Wesner and Dr Seaton and I have found their evidence to be questionable and unreliable.
It is the law of Australia that benefits, bestowed upon the basis of information and evidence proven to be unreliable, are recoverable. This Tribunal is bound by that law. Accordingly, the Tribunal affirms the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  26, 27, 29 May 1997; 10 July 1998; 30 September, 1 and 2 October 1998
Date of Decision  3 March 2000
Counsel for the Applicant        26-29 May 1997 – applicant in person
  10.7.98 – Mr K Newell
  30.9 – 2.10.98 – Mr A Scotting
Solicitor for the Applicant          Messrs Turner Freeman
Counsel for the Respondent    Ms C Holmes
Solicitor for the Respondent    Australian Government Solicitor

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Wesner and Comcare [2000] AATA 164

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