McDonald and Comcare [1999] AATA 59 (4 February 1999)

Last Updated: 11 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 59

ADMINISTRATIVE APPEALS TRIBUNAL )

) N o A97/342

GENERAL ADMINISTRATIVE DIVISION )

Re KERRY McDONALD

Applicant

And COMCARE

Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date 4 February 1999

Place Canberra

Decision The tribunal affirms the decision under review.

..............................................

Pamela Burton

Senior Member

CATCHWORDS

COMPENSATION - Work-related back injury - whether injury at home 5 years later is a compensable exacerbation - capacity to work - credibility of applicant.

Legislation

Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

1. The applicant seeks a review of the respondent's decision dated 11 November 1997 affirming a determination dated 3 June 1997 to cease liability for compensation for an injury sustained at work in 1986. The applicant was off work for 6 days and received compensation for that period. In November 1990, he submitted further accounts for payment arising from a claimed exacerbation of the work-related injury. Compensation was paid from 10 December 1990 (T18) until 3 June 1997 (T99).

2. The applicant was represented by Mr S Pilkinton and the respondent by Mr R Soulio of counsel. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the various exhibits tendered by the parties. The applicant gave evidence and was cross-examined for a day and a half. His wife gave evidence, and Mr Shaw, a neighbour of the applicant at the applicant's property in Tarago gave telephone evidence.

3. No doctors were called to give evidence. It was agreed that the different opinions expressed by them were accounted for by the different conclusions they drew from the material available to them in relation to the applicant's history. It is necessary for the tribunal to assess the reliability of the applicant's evidence and the history he gave to the doctors and make findings of fact before assessing the value of the various medical opinions offered.

CLAIMS HISTORY

4. The applicant was born on 13 October 1962. He left school at the end of year 11 in 1980. In January 1981, he commenced but did not complete an apprenticeship as a mechanic. He was employed by the Australian Audit Office in early 1984. His duties were those of a storeperson and included stationary delivery, assisting the assets officer, and he was required to move some office furniture.

5. In 1986, the applicant had two accidents at work. In evidence, he said that the first accident occurred on 5 March and the second on 10 June. He said that following the second incident, he was off work for two weeks.

6. On 18 June 1986 the applicant lodged a claim for compensation for the period 16 June to 23 June 1986 for strained lower back in relation to the first incident of 5 March 1986 (T7). On 24 July 1986 the respondent accepted liability to pay compensation in respect of the applicant's back injury. The applicant received compensation for the period 16 June to 23 June 1986 (T14).

7. On 22 September 1986 the applicant resigned from the Australian Public Service. In evidence he said that he started work in about December 1986 as a subcontractor installing ceiling insulation bats. The applicant said that he ceased doing this work in mid 1988. He said that he subsequently commenced a taxi driving course and began taxi driving in December 1989. He obtained a taxi licence in May 1989 (Exhibit O).

8. In 1988, the applicant bought a 40 acre property for $28,000 in Tarago, New South Wales, some 3/4 of an hour out of Canberra, with the intention of raising angora goats and retiring on the property. He spent quite a lot of time there. He did not attend a doctor for his low back condition nor make further claims for medical expenses or incapacity payments between 1986 and 1990.

9. In November 1990 the applicant had a re-occurrence of low back pain. He saw Dr Shroot, his general practitioner on 19 November 1990 (T15). Liability was accepted by the respondent for that injury and the applicant received incapacity payments and medical expenses from 10 December 1990 (T18) until the decision to cease payments on 3 June 1997.

CONTENTIONS AND ISSUES

10. The applicant contends that he had constant low back pain since the 1986 injury, and that he resigned from his employment because of the hostile work environment he found himself in when he was unable to perform his regular duties. He claims that although he was able to work and did so between 1986 and the end of 1990, his condition persisted and worsened progressively. He claims the re-occurrence of back pain in 1990 was unprovoked and arose from an exacerbation of his work-related injury. He claims he has been incapacitated for full-time work since that time, and that he is entitled to compensation from 3 June 1997.

11. The respondent ceased payments on the grounds that the 1990 injury was a new injury separate from the work-related injury of 1986, and it contends that in any event, the applicant was and is not incapacitated for work. The respondent points out the discrepancies between the applicant's account of the circumstances surrounding the incidents in 1986 and the severity of his injuries, and the documentary evidence as to those matters. The respondent challenges the applicant's account of his reasons for resigning when he did; his subsequent capacity for work; his ongoing back pain; where he lived between the time he left work in 1986 and when compensation ceased in 1997; and the activities he engaged in. The applicant's credit is a central issue for the tribunal's consideration.

12. The issues for the tribunal are therefore to assess the value of the applicant's evidence and decide whether he has an incapacitating low back condition, and if so, whether the 1986 incidents at work caused, or materially contributed to it.

13. The medical reports available to the tribunal contain differences of opinion as to the source and severity of the applicant's condition. The opinions of Dr Shroot (T19), Dr Searle (Exhibit A) and Dr Stevenson (T43, T51) agree on the pathology of the applicant's back. Those doctors link the 1990 re-occurrence of back pain with the work-related incidents of 1986. Their opinions in this respect are dependent on the history given by the applicant of continuous pain in that period.

THE INCIDENTS AT WORK

14. Mr McDonald said in evidence that in 1986 in the course of moving furniture, he suffered back strain, and as a result of the two 1986 incidents in particular, he injured himself. He reported the two incidents on the day of their occurrence, the first on 5 March 1986 (T4), and the second on 10 June 1986 (T9). There is some question in relation to the date of the second incident. Dr Shroot, Mr McDonald's general practitioner, recorded it as having occurred on 12 June (T6), as did Mr McDonald on one occasion (T8). At the hearing, Mr McDonald accepted 10 June 1986 as being the correct date.

15. The records show that the first incident occurred when Mr McDonald was lifting a filing cabinet, and the second when he was lifting a desk. Mr McDonald's account is that the first incident occurred when he was lifting a desk, and the second, when he was moving a filing cabinet into a lift. Further, a statement from Mr Exposito, a witness to the first incident, and Mr McDonald's own statement records that the incident involving the filing cabinet occurred when it was being moved out of, not into, a lift (T4, T5).

16. Mr McDonald's recollection of the chronology of events does not accord with the accident reports completed by him at the time (T4, T9), nor with those of his co-workers Mr Exposito (T5), and Mr Nicholas, each of whom completed a report in respect of the incident they witness shortly after the event (T11). Mr McDonald gave an elaborate explanation as to why he recorded the incidents the way he did. He said that after each of the events he complained to the particular supervisor of pain, and on each occasion he was told to record what he was doing at the time of the complaint, rather than what he was doing when he first suffered the pain. He said he did as directed because he was unfamiliar with the compensation form procedure. It transpires, however, that Mr McDonald had made a claim for work-related injuries arising out of a motor vehicle accident in 1985 (Exhibit 16).

17. I do not accept Mr McDonald's explanation that he was told to complete the incident reports inaccurately. He completed the first incident report in March before the occurrence of the second incident in June. Any confusion about the events is likely to have arisen after the occurrence of the second incident. To the extent that Mr McDonald's account now differs from that recorded in the accident reports, I prefer the documented accounts as reported by him at the time. His memory now of events some 12 years earlier is likely to be less reliable than his recall at the time. I conclude therefore that the first injury was more likely to have occurred while Mr McDonald was moving a filing cabinet, and that it did not involve the filing cabinet falling on him. The second injury probably occurred during the course of him lifting a desk.

INJURIES SUSTAINED IN THE 1986 INCIDENTS

18. In evidence, Mr McDonald said that the filing cabinet he was moving weighed approximately 250 kilograms. He said he was moving it into a lift by means of a trolley, when the cabinet fell back onto his head and he sustained bruising to his neck and shoulder. He said he fell to the ground and was positioned in such a manner that his head was pushed next to his knees. He said that he tried to get up but was in extreme pain that was "so intense that I was numb and semi-unconscious".

19. This is not recorded by his doctor in his notes, nor in any claim Mr McDonald has made or on any form he has completed thereafter. He has only referred to injury to his low back. It is important to Mr McDonald's case that the more serious incident involving the filing cabinet took place after the strain he suffered moving the desk, as he claims it was the filing cabinet incident which immobilised him, rendering him unable to get out of bed for some days and which gave rise to circumstances that led him to resign.

20. Mr McDonald's wife's evidence is that she collected him from work after the filing cabinet incident and he remained in bed for several days before being able to see the doctor. She said that she had telephoned the doctor who told her that Mr McDonald should come to see him when he was well enough to do so, and otherwise to rest. Dr Shroot's records show that Mr McDonald did not see him until 16 June 1986, and that he was then certified unfit to 24 June (Exhibit 4). Dr Shroot did not record any complaints earlier than this time, nor that there was any complaints of pain or bruising to the neck and shoulder. It records "Backache - related to lifting at work 12/6/86 (sic)" (T6). There is a significant discrepancy between the evidence given by Mr and Mrs McDonald, and that disclosed in the records. Importantly, it appears from the wage records that Mr McDonald continued to work immediately after both the incidents of 5 March and 10 June 1986.

21. In cross-examination, Mrs McDonald agreed that she had discussed the evidence in detail with her husband before the hearing commenced. I am not satisfied that when giving her evidence, her recall was not influenced by the statement Mr McDonald made to his solicitor, which she says she read. At the hearing she said that she had the previous day discussed with Mr McDonald the evidence he had given to the tribunal. I can place very little weight on Mrs McDonald's corroboration of the applicant's written statement and of the evidence he gave on the first two days of the hearing.

22. The discrepancies between Mr McDonald's account of what occurred on 5 March and 10 June 1986 and the documentary evidence lead me to conclude that Mr McDonald is exaggerating the severity of the injuries he suffered when moving the filing cabinet. I prefer to rely on the accounts of Mr McDonald's injuries as reported at the time. Mr Exposito noted in relation to the first incident that Mr McDonald "strained the lower part of his back" (T5). I accept that Mr McDonald suffered an injury of some kind in the incident as reported. In relation to the second incident, Mr Nicholas is recorded as saying that Mr McDonald suffered an injury to the lower part of his back while "lifting a desk from one room to another" (T11). I accept that Mr McDonald suffered an injury to his low back in that incident. I find that no significant injury, if any, was sustained to his head, neck or shoulder in either of the incidents.

REASONS FOR RESIGNING

23. Mr McDonald resigned from work some three months after the second incident. He said he resigned because his injuries precluded him from properly completing his duties; he was receiving no assistance; and he could not tolerate the unsympathetic attitude of his colleagues towards him. He found the environment in which he worked hostile and uncomfortable. He said he had applied for a transfer but was unable to obtain a position at an equivalent level. On being cross-examined about his reasons for seeking a transfer, it transpired that Mr McDonald's request for a transfer was made to the Department of Defence, and accepted prior to his injury in March 1986 (Exhibit 8). Nothing turns on this, as Mr McDonald does not claim that his retirement was "reasonable" within the meaning of subsection 19(4)(f) of the Act. He concedes his employment was suitable and that he retired voluntarily. It does, however, reflect poorly on Mr McDonald's credit and it is another example of the unreliability of his evidence.

EMPLOYMENT AND ACTIVITIES IN THE PERIOD 1986 TO 1991

24. In the period commencing with Mr McDonald's retirement from the Audit Office in 1986 to the time he next consulted a doctor about back pain at the end of 1990, the tribunal is dependent upon Mr McDonald's evidence as to his back condition and his capacity for work. Mr McDonald asserts that he had continuous back pain in this period, which evidence he relies upon to establish a causative link between the 1986 incidents and the diagnosis of his medical condition in 1991.

25. Mr McDonald's reasons for resigning in 1986 having been discredited, leaves open to question his evidence about his capacity to work. His work as a ceiling insulator required some physical agility. He climbed ladders, gained access to ceilings through either a manhole or by removing tiles from a roof. Dr Newcombe expressed the view that this work is inconsistent with a person suffering from a disc prolapse or serious back injury. Dr Newcombe noted that (T83):

Weighing the observable findings and the history of employment since he left the public service against the history he has given, it is reasonable to conclude that, on the balance of probability, the effects of the June, 1986 event had ceased for practical purposes by the time he undertook the insulation work and it is more likely than not that the problems in 1990 and 1991 were due to additional activity beyond the events of 1986.

26. The property at Tarago that Mr McDonald purchased in 1988 had no structures on it other then the existing fences. Mr McDonald said in evidence that because of his back condition he was not able to do much work on the property. He said that much of the heavy work such as the construction of a machinery shed and additional fencing was completed by farmhands. Mr McDonald said he paid the farmhands cash for their work from money withdrawn from his bank account. When asked to identify the cash withdrawals on his bank statement (Exhibit 10), he was unable to do so.

27. Mr McDonald denied any part in erecting the new fencing on the property. He denied hammering a star post into the ground with the back of an axe, which his neighbour, Mr Shaw, said he saw him do on Easter Sunday (15 April) in 1990. Mr Shaw was specific about the date and details of this event. Mr McDonald challenged that evidence asserting that the fencing materials were not purchased until after Easter. He produced a receipt for the purchase of the materials to the amount of $2752.30 (Exhibit H). However, Mr McDonald's bank statement (Exhibit 10) indicates that a cheque was paid to Hall Rural Supplies on 9 April 1990. I accept Mr Shaw's evidence.

28. There is insufficient evidence before me to find that the fencing work carried out on the property was done by farmhands. I find it more likely that Mr McDonald played a substantial part in erecting and repairing fences and doing other work on his property. Despite Mr McDonald's claimed incapacity in the period 1986 to 1991, he made no claim for medical or incapacity payments in this period, which, if his capacity to work was diminished, one might expect him to have done.

THE 1990 BACK INCIDENT

29. In November 1990, Mr McDonald suffered what he described at the hearing as "an extreme exacerbation" of his previous injury. He recalled with precision exactly what he was doing at the time of the onset of severe pain. This is to be contrasted with much of the rest of his evidence. His evidence is that he was bending over the bonnet of his wife's car to check the oil when he:

felt a pain which I describe as a spear - spearing pain going up my back into the back of my head, ... and the extent through my buttocks, through my legs, which caused my knees to buckle.

30. On 19 November 1990 Mr McDonald attended Dr Shroot. He was referred to Dr Chandran, neurosurgeon in 1991. A CT scan was performed. It revealed a minor disc bulge at L4/5 level and a prominent central disc protrusion at the lumbrosacral level (T21). It is unfortunate that no earlier radiology is available post 1986 with which this could be compared.

EMPLOYMENT AND ACTIVITIES IN THE PERIOD 1991-1996

31. Mr McDonald's evidence of his expenditure made on the property indicates that he had a substantial source of funds available to him after he retired from the Audit Office. He was cross-examined at length about his financial situation. His answers to question asked of him about his bank statements (Exhibits 10, 12, and 13) suggest that he received some money for roof insulation work beyond the time he commenced taxi driving. Mr McDonald's tax returns available to the tribunal reveal that he claimed the status of primary producer in the years 1992, 1993 and 1994. His tax returns prior to 1992 were not made available.

32. When questioned about the expenditure Mr McDonald made in relation to the Tarago property, he explained that he had accumulated some $40,000 from savings made from working since the age of 16. He said he kept it in a box at home, and drew money from it when required. On being questioned about deposits into his bank accounts shown on his bank statements, he said that some of those were cash deposits from this source. On the third day of the hearing, Mr McDonald modified his evidence about the source of his savings, saying that he received some bequests and gifts. On questioning, these did not amount to any substantial sum.

33. Mr McDonald gave evidence that he was forced to wind down the activities on his Tarago farm around 1994 because pain prevented him from effectively running the property. He said his back condition deteriorated and by this time he found it difficult to do the sort of heavy work his goat farm required.

34. Footage of surveillance film taken in 1996 was shown at the hearing (Exhibit 21). Mr McDonald was depicted carrying a 30-40 kilogram bag of chicken feed bag to his car in October 1996. He explained in evidence that the bag was rolled off by the storeman onto his shoulder (see also T92). He insisted that he carried it only a few paces to his car and dropped it into the boot. He said he did not lift it out of the boot. He said his seven year old daughter unbagged it for him at the farm with the use of a scoop. I appreciate the difficulties referred to by Dr Petroni in his report of 8 July 1998 (Exhibit B) of using film to assess a person's capacity. However, Mr McDonald accepts that on his "good days" he could do the activities he is depicted in the film. On the evidence as a whole, I conclude that Mr McDonald is able to perform a large range of physical activities, and that he had a lot more "good days" than he would otherwise have the tribunal believe.

35. Mr McDonald's wife's evidence is of little value to me in regard to the video film. The couple watched the video together on several occasions, making notes. Mrs McDonald prepared the summary of responses to it on Mr McDonald's instructions (T92). When she gave her evidence, she was thoroughly familiar with what he said about each incident. In these circumstances, it is difficult for her to distinguish what in fact she recalls and what she had read or been told.

THE APPLICANT'S PLACE OF RESIDENCE

36. Mr McDonald said in his evidence in chief that he lived with his wife "sometimes" prior to their marriage in April 1989. He said that they separated later that year, and did not resume cohabitation until compensation payments were ceased in 1997. They are now reconciled. In cross-examination Mr McDonald conceded that he resided at the home rented by his wife in Scullin in Canberra during the time he was doing shift work as a taxi driver up to 1991, and again in 1992 when he was ill. He spent Christmas 1993 with his wife and children at Scullin, and he told Dr Chandran in April 1994 that he had been residing at Scullin since December 1993 (Exhibit 19). Between December 1990 to 1997, he travelled to Canberra and stayed overnight at Scullin once or twice a week when visiting doctors, his family and for special occasions. There was a period in 1994 when he stayed at the Scullin residence for some weeks while attending the New Horizons Program. He stayed at Scullin between September and December 1996.

37. It is clear from the evidence that Mr and Mrs McDonald maintained a close relationship throughout the purported period of separation. An invoice to Mr Shaw dated 15 April 1990 for boundary fencing work was signed by Mr and Mrs McDonald trading as Kladham Enterprises (Exhibit 6). Mr McDonald explained that Mrs McDonald was not involved financially, but he conceded that she had a supportive role.

38. Mrs McDonald verified her unsigned statement of evidence at the hearing. It indicated that she and Mr McDonald had continued to reside together since 1983. However, at the hearing, she corrected this to read "living `on and off' together since 1983" before she signed it (Exhibit M). While I accept that the uncorrected statement was not signed by her, Exhibit M deposes to her observation of Mr McDonald's pain and need for massages since 1991. It makes no reference to their separation in late 1989. Only in her oral evidence did Mrs McDonald say they had separated.

39. I accept that Mr McDonald spent quite a deal of time at the Tarago property. Mrs McDonald and the children visited the property and sometimes slept in the shed or camped overnight in the period of their purported separation. The video film reveals that he accompanied his wife on numerous outings. Throughout the purported separation, Mrs McDonald took a personal interest in the Tarago property. It is clear that both Mr and Mrs McDonald enjoyed the benefit of both country and city living in this time. Mrs McDonald conceded that sexual relations did not cease during the separation period. Taking the whole of this evidence into account, I am unable to accept that the parties formally separated.

CREDIT

40. The way in which Mr McDonald presented his evidence, and the way in which he involved his wife in the preparation of his case makes it difficult to ascertain the truth. That Mr McDonald has not consistently told the truth is clear. His motives for this are unclear.

41. If I am to accept Mr McDonald's story that he was unable to perform physical tasks on his farm, I have to accept his evidence that he had to pay people to do work for him. This requires acceptance of some fairly extraordinary evidence about a large source of funds he accumulated from savings he made from his salary since he was 15 or 16 years of age which he kept in a box at home. Though Mr McDonald claimed the status of primary producer, he made no claim for the large amount of expenditure he says he incurred for labour in his tax returns. If I do not accept his evidence about his source of funds, then I cannot be satisfied that Mr McDonald relied upon farmhands to do any manual work. His evidence about the $40,000 sum is not credible. To have saved that amount required Mr McDonald to save nearly $100 each week from 1978 from the time he was 16 to 1986. The evidence as to his earnings and expenditure does not support that suggestion. A further problem with his evidence arises from his assertion that he was separated from his wife at a time when he says he kept the money in a box at home. If "home" was not the residence at Scullin, I find it unlikely that he would have kept the money in a shed on his property.

42. It might be that Mr McDonald has been less than frank about his financial affairs because of the interest it might arouse with the Department of Social Security, or the Taxation Office. I will not speculate about this, but in the absence of frank and consistent evidence, I am not satisfied that he is telling the truth about his source of funds, and consequently, I am not satisfied that he paid transient farmhands to carry out the work on his farm which he says he could not do himself.

43. I accept from the record of Mr McDonald's attendance on Dr Shroot that some incident occurred in November 1990, causing Mr McDonald to complain of low back pain. It necessitated referral to a specialist and x-rays. I accept that Mr McDonald experiences some pain on activity. He appeared to be in pain at times when giving evidence at the hearing.

44. For Mr McDonald to succeed in this claim, the tribunal must be satisfied that as a result of his 1986 work-related injury, his back pain persisted until the injury he sustained in 1990, and deteriorated thereafter. The medical opinions supporting his claim are dependent upon the correctness of assumptions to that effect. Having not sought medical treatment between 1986 and 1990, the tribunaI does not have the benefit of the evidence of any treating practitioner to verify Mr McDonald's claim of ongoing back pain. I am dependent upon Mr and Mrs McDonald's evidence about his back condition and his physical capacity. I am unable to rely on Mr or Mrs McDonald's evidence. I am not satisfied on the evidence that Mr McDonald suffered ongoing pain from 1986 to 1990. Without being satisfied as to that fact, I am unable to find on the medical evidence available to me that the 1990 incident is causally related to the 1986 work injury.

FINDINGS

45. I find that the incident involving the lifting of a filing cabinet occurred in March 1986. I do not accept the applicant's dramatic version of the event in which he was injured by the 250 kilogram filing cabinet falling back on him while it was being moved on a trolley. In no document is such an incident recorded by him, and the injuries he says he sustained are not recorded by his doctor. The injury on 10 June 1986 occurred while the applicant was lifting a desk. I accept that the applicant suffered a low back strain and was off work for the periods indicated in the wage records.

46. The applicant voluntarily resigned from what was suitable employment at the time. Not long after that he obtained work as a ceiling insulator. If he suffered any incapacity at this time, which I do not accept as a fact, he is likely to have been dis-entitled to compensation under section 19 of the Act, due to his voluntary resignation from suitable employment. He had the capacity to work as a ceiling insulator and as a taxi driver. If the applicant had a period off work before taking up taxi driving, I do not accept it was for the purpose of recuperating from pain he suffered doing the insulating work. He had by this time purchased his property at Tarago at which he spent a lot of time. He sought no medical attention during this period.

47. Though on Mr McDonald's behalf his counsel emphasised that no claim is made that the applicant is totally incapacitated by his injuries, and that he has some capacity to work, the applicant's evidence is that he is only able to get out and about on his "good days" and there is very little he can do. I find that Mr McDonald has some capacity to work. In the light of my other findings, I do not need to determine the extent of that capacity.

48. To the extent that the applicant suffers pain and is incapacitated by it, I am not satisfied that its source or cause is in anyway linked to the work-related incidents of 1986. In the presence of evidence that he sought no further treatment until 1990 and in the absence of reliable evidence from him or his wife, I am not satisfied that he suffered a continuity of pain after his resignation in 1986. I find that Mr McDonald is not eligible for compensation for his 1986 work-related injury on and from 3 June 1997.

DECISION

49. The tribunal affirms the decision under review.

I certify that this and the 15 preceding pages are a true copy of the decision and reasons for decision herein of Senior Member Pamela Burton

Signed: .....................................................................................

Associate

Date/s of Hearing 28-30 September and 29 October 1998

Date of Decision 4 February 1999

Counsel for the Applicant Mr S Pilkinton

Solicitor for Applicant Scott Shiels & Glover

Counsel for the Respondent Mr R Soulio

Solicitor for the Respondent Sparke Helmore