Bentick and Comcare - [2002] AATA 783

DECISION AND REASONS FOR DECISION [2002] AATA 783

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/263

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TERENCE NOEL BENTICK
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr. D.W. Muller, Deputy President Brigadier I.R.W. Brumfield, CBE, DSO, RL, Member Dr. K.P. Kennedy, OBE, Member

Date10 September 2002
PlaceBrisbane

Decision The Tribunal affirms the decision that the respondent is not liable to pay compensation to Terence Noel Bentick.

............(Signed).......................
D.W. MULLER
DEPUTY PRESIDENT

CATCHWORDS
COMPENSATION – back condition – whether old soft tissue injury causing problems 18 years later – or whether naturally occurring degeneration

REASONS FOR DECISION

Mr. D.W. Muller, Deputy President Brigadier I.R.W. Brumfield, CBE, DSO, RL, Member Dr. K.P. Kennedy, OBE, Member

This is an application to review a reconsideration decision dated 8 February 2000 affirming a decision dated 13 October 1999 which determined that liability to pay compensation to Terence Noel Bentick for his back condition had ceased on and from 16 September 1987.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and a group of medical reports (Exhibit 2). The applicant was represented by Mr. Peterson of Counsel and the respondent by Mr. Clarke of Counsel. The applicant gave oral evidence. The remaining evidence from various medical specialists was given by telephone and will be referred to again later.
Mr. Bentick was born on 13 August 1955.
Mr. Bentick enlisted in the Citizen Military Forces on 1 September 1973 and served until 27 November 1973.
Mr. Bentick joined the Australian Regular Army on 28 July 1976 as a signalman in the Signal Corp and served until 27 July 1985. He was discharged at his own request.
Mr. Bentick has mid-thoracic back pain. He claims that his back pain is related to two incidents in which his back was injured while he was serving in the Army. His evidence about the two incidents was to the following effect.
(i)In or about August 1982 he was involved in a night training exercise. His job was to walk into an ambush set up by trainees. He accidentally trod on a flare which lit up his immediate area. In a bid to avoid capture he moved quickly away from the flare and fell off the edge of the path down an embankment. He fell backwards on to his radio pack. He experienced severe pain in the mid to lower part of his back for about 20 minutes. The pain had disappeared by the time he returned to his unit. He took no medical action, nor did he report the matter to any Army person.
(ii)In August 1983, he was playing rugby during a Physical Instruction session. He was felled by a tackle and then he felt pressure and pain in the middle of his back, just below his shoulder blades. It felt as if he had been kneed in the back. He experienced pain in the area and he could not continue with the Physical Instruction session. He hobbled to the medical centre where he was given anti-inflammatory drugs. Subsequently he had an x-ray but he was not advised of the x-ray result.
The records show that in the months following the rugby injury, Mr. Bentick was treated and reported upon in the following terms:
4 August 1983: Dr. Sewell recorded a complaint of thoracic back pain but noted full spinal flexion and full straight leg raising.
5 August 1983: X-ray report
"THORACIC AND LUMBAR SPINE: There is some minor end plate irregularity in the thoracic region which may be due to old Scheuermann's type disease. No other bone or joint abnormality is seen."
31 August 1983: Dr. Sewell noted that the prescribed medication had been effective, his spinal flexion was full and that he was fully fit for duty.
13 October 1983: He was still complaining of lower thoracic backache. His weight had increased to 107 kgm. He was fit for full duty.

Mr. Bentick had a Medical Board Examination on 7 November 1983. The report shows that he was 180cms tall and weighed 110kgm. He was said to be "markedly overweight" and it was suggested that he see a dietician. The report also said that he had "gradually deteriorating low back pain – over a period – although no disability" and "not fit prolonged running or heavy lifting".
Mr. Bentick gave evidence that his lower thoracic pain has been present ever since he received the knee in his back in the Physical Instruction session in August 1983. He said that the pain is not usually present when he is at rest but it is constant when he moves. He also said that he has never suffered from pain in the lumbar region of his back, nor has he ever complained to any medical person about problems with his lumbar spine.
The material available to the Tribunal shows that Mr. Bentick was also involved in two non-Army experiences which may have had some bearing on this matter.
(i)In February 1983, Mr. Bentick took four weeks leave. In that four weeks he rode a motor-cycle around Australia. He covered 15,000kms. He suffered upper back pain and stiffness during the course of the trip but he recovered within one week of returning.
(ii)On 31 March 1984 he was riding his motor-cycle at a round-about when he was hit by a car. He suffered abrasions and bruising to his knees, right thigh and right elbow.
In a referral to an orthopaedic surgeon on 21 February 1984, Dr. Sewell stated that the applicant had complained of recurrent pains in the thoracic and lumbar areas of his back. Dr. Stubbs, the orthopaedic surgeon, on 22 March 1984, noted episodic low back pain about once a year, never major but pain much worse since the football incident. Pain was then throughout the spine. Dr. Stubbs recorded tight hamstring muscles but otherwise good movement.
On or about 29 March 1984, Mr. Bentick completed a claim for compensation in relation to his back. He claimed that he injured his back at 0830 on 2 August 1983. On 19 July 1984 liability was accepted for the claim of injury to thoracic vertebral area pursuant to the Compensation (Commonwealth Government Employees) Act 1971.
When reviewed in November 1984, Dr. Stubbs noted that the applicant continued to have lumbar pain which was worse with prolonged posture but not worse with exercise. His weight was then 99kg and examination was otherwise as previously noted in March 1984.
In February 1985 the applicant reported to Dr. Sewell complaining of episodic low back pain. In April 1985 he was seen by a Dr. Hallett complaining of a painful neck and back since a motor bike accident in March 1984. The applicant had also recorded this information in a medical history questionnaire in May 1985.
In July 1987 the applicant was seen by a Canberra general practitioner. Dr. Pratt recorded that the applicant had told him that he had had low back pain since a football injury in 1983. At the time of the examination he had pain in his hip and Dr. Pratt made a diagnosis of sciatica. Dr. Pratt commented that in the absence of radiological positive signs it was not possible to state categorically that the current symptoms were due to the accident in 1983.
In October 1987, the applicant saw Dr. Pratt again. Dr. Pratt reported that he could see no relationship between the applicant's then current problems and the football injury in August 1983.
In November 1987, the applicant was seen by a Dr. John Corry, Consultant in Rehabilitation Medicine, whose conclusions were:
"Mr. Bentick suffers from mechanical low back pain which appears to have been precipitated by an injury while playing football in August 1983. There was temporary aggravation from the motor vehicle accident in March 1984. It is my impression that the two incidents of back pain described as occurring in August 1982 and February 1983 are unrelated to his present symptoms. The August incident followed a direct blow to the region and was short lived. The February incident was situated in a different location behind the right shoulder blade and appeared to clearly relate to the high level of use of that arm while riding his bike around Australia.
His general limitations are now minimal. He should avoid heavy lifting or repetitive bending but apart from this is fit for a wide range of activities and indeed his symptoms are much decreased while he maintains activity. I had previously reported him as being fit for work as a linesman with Telecom."

In August 1988, the applicant saw Dr. Richard Vance, orthopaedic surgeon. Dr. Vance reported:
"He is markedly overweight and he indicated the mid dorsal regional of his spine as the site of his pains. There was no tenderness in that region and no deformity. Overall spinal movements were restricted but gave rise to no pain. Flexion was restricted essentially owing to his obesity. Xrays dated 26/4/85 of his dorsal spine revealed no abnormality.
His present obesity however adds to his problems in relation to carrying out physical work. Overall he should be encouraged to lose weight and become generally more fit."
After leaving the Army, Mr. Bentick worked at the following occupations:
(i)a data processor
(ii)a Telecom linesman, which is what he did before joining the Army.
(iii)A letter sorter with Australia Post
(iv)Manager of a Canberra hostel from 1987 to 1992.
(v)A civilian employee in the Department of Defence in Canberra, doing much the same work as he had been doing when he was in the Army.
(vi)He was posted to Amberley for a year between November 1993 and November 1994.
It is Mr. Bentick's claim that not only did he have to leave the Army because of his back condition but he also had to leave each of the jobs that he has had since because of his back.
In the years that Mr. Bentick worked in Canberra, he lived with his family on a small farm about 20kms from Goulburn. He used to ride his motor cycle to and from Canberra each day until his motor-cycle broke down. He then drove a van to work.
After leaving the Army, Mr. Bentick claimed his medical expenses in relation to his back, from time to time. The payment of the applicant's medical expenses came to a halt in November 1993. The decision to not pay the applicant's medical expenses was based on a report by an orthopaedic surgeon, Dr. Geoffrey Stubbs. Dr. Stubbs saw the applicant on 11 August 1993 and concluded:
"Clinical examination shows him to be grossly overweight. His obesity is abdominal distribution and his limbs are relatively spindly compared to his trunk. His spinal movements and both low back and thoracic spine are restricted in all directions but there is a soft end point and the feeling that he could move better if he wished. His straight leg raising is very poor. He starts knee flexion at about 50 degrees. He can manage one sit up but only by flexing and straightening his legs to give added impetus. His posture is very poor. He is markedly round shouldered. There is tenderness over the apex and thoracic kyphosis. In all his range of spinal movement is about half the normal range.
He had only one special investigation with him when I reviewed him, a bone scan performed at Woden Valley Hospital in June. This examination is normal. Mr. Bentick has no x-rays but I was able to find the reports of x-rays performed on his thoracic spine in 1983. These x-rays contain the observation of anterior wedging of the vertebral end plates consistent with Scheuermann's disease which was my clinical diagnosis.
This man has Scheuermann's disease. It is a common disturbance of spinal growth that occurs during the adolescent growth spurt. It is typically asymptomatic in adolescence but is known to give rise to a mid-thoracic back ache in later life. The pain is of burning character and is often noted to occur when the person lies down flat. The cause is almost certainly postural due to the kyphosis of the Scheuermann's disease. That is, it produces a roundness of the back so that the patient stands in what appears to be a semi-slumped shoulders forward position. It is this improper and mechanically unsound posture that probably induces the pain. It induces fatigue in the spinal ligaments as the pain is typically more pronounced with prolonged sitting and bending forwards. When lying down the pain can become quite pronounced although it is generally short lived. People with Scheuermann's disease may however find difficulty in lying on their back.
All of the discomfort associated with Scheuermann's disease is increased with inactivity and obesity. Indeed the treatment of the problem is any exercise that increases general fitness and helps to reduce weight, as this increases the resistance of the spine to fatigue and reduces the slump round shouldered position.
I believe that Mr. Bentick has mid thoracic back pain associated with his Scheuermann's disease. As such this is a developmental anomaly and is not induced by injury. Had no accident occurred to him whilst serving in the Army, I think his symptoms would be exactly the same as they are how. It is significant to note that his symptoms did not become fixed until he was transferred to Canberra and served in an office type position and by his own admission found that he got little exercise and gained weight.
I would gather from the tone of the reports all written in the documentation you forwarded for my perusal that liability may have already been conceded. If so, this man has a whole body incapacity of 10% based on the loss of half the normal range of movement of his thoraco-lumbar spine. There is no nerve root involvement nor other factors that increase the incapacity. Reference is made to Comcare Table 9.12 and the corresponding Veterans Affairs Table which is very similar"
Mr. Bentick ceased work at the end of November 1994. He said that he had two main reasons for ceasing work. His back was getting worse. He also wanted to give his de facto wife a chance to get herself an education. She had five children. He became a "house husband".
On 29 June 1999 and 2 November 1999, the applicant saw Dr. Yaksich, neurosurgeon and Director Rehabilitation Services. The oral evidence of Dr. Yaksich, together with his reports made the following points:
(i)The plain x-rays of the thoracic spine show some mild irregularities which could be considered as being changes of Scheuermann's disease, but these changes are minor and not of clinical significance.
(ii)There are some changes consistent with ankylosing spondylitis but the changes are not severe.
(iii)The pain has persisted since the incident on the rugby field. It could be due to a severe soft-tissue injury which has not completely resolved since the rugby incident.
On 19 July 1999, Mr. Bentick requested that his claim for compensation be re-opened. He claimed that he had suffered a significant deterioration in his back condition. He relied to some extent on Dr. Yaksich's opinion that his back problems could be due to an unresolved soft tissue injury.
In August 2000, the applicant saw Dr. John Pentis, orthopaedic surgeon. The oral evidence of Dr. Pentis, together with his written report made the following points:
(i)X-rays revealed degenerative changes and changes consistent with ankylosing spondylitis in the thoracic and lumbar spine.
(ii)The applicant does have ankylosing spondylitis which has been aggravated along with soft tissue damage to the thoracolumbar region, in the Army incidents. (Dr. Pentis was not told by the applicant about the trip around Australia, nor about the collision with the car.)
(iii)Ankylosing spondylitis is a constitutional degenerative disease.
(iv)X-rays reveal no evidence of any fractured vertebrae.
(v)Obesity can impact on back symptomatology.
(vi)The applicant may not have Scheuermann's disease but he has a constitutionally based degenerative condition of the spine.
Dr. Margaret Kidd, rheumatologist, saw the applicant on a number of occasions since 1999. She gave evidence to the following effect:
(i)The applicant has low grade ankylosing spondylitis.
(ii)There is no evidence of previous Scheuermann's disease. He recalls no teenage back pain.
(iii)There is no specific evidence of ankylosing spondylitis in the thoracic spine.
(iv)It is unusual to have degenerative changes in the thoracic region at the applicant's age.
(v)Multi-level spinal degenerative disease is present, but is a little premature at the applicant's age.
(vi)Excess weight of considerable proportion and the applicant's diabetes could both potentially add to the risk of degenerative change.
Dr. Kidd referred the applicant to St. Andrews CT Scanner for CT scan of thoracic spine and Southern X-ray Clinics for a radio-isotope bone scan. The reports read:
18 November 1999
"CT SCAN OF THORACIC SPINE:
TECHNIQUE: Scans were performed from T5 to T8.
FINDINGS: No evidence of spinal canal stenosis is seen. The thecal sac appears normal. The intervertebral disc demonstrate small anterior osteophyte formation. No ligament calcification identified. The posterior facet joints demonstrate degenerative change. This is most marked at the T5-6 level where the joint space is sclerotic and narrowed. The costo-verbebral junctions also demonstrate degenerative change. This is most prominent at the T6-7 level on the left where there is narrowing and perhaps even ankylosis of the joint present. Calcification in the intervertebral disc is seen as an indication of degeneration.
The neuro foramen demonstrates narrowing on the right side at the T7-8 level.
The marrow space appears to demonstrate some vague small lucencies at all levels. This could be a normal feature but just raises the possibility of skeletal metastases and a bone scan is suggested to exclude this.
COMMENT:
Evidence of advanced degenerative change of the facet joints and costo-chondral joints with vertebral body osteophytes noted. No specific evidence of ankylosing spondylitis seen."
12 December 1999
"RADIO-ISOTOPE BONE SCAN
TECHNIQUE:
Whole body images following technetium 99m MDP.
FINDINGS
Skeletal appearances are within normal limits. In particular no abnormality is seen in the spine or sacro-iliac joints.
SUMMARY
Normal examination."

Dr. Stubbs, orthopaedic surgeon, saw the applicant in March 1984, November 1984 and again in August 1993. His comments in relation to those consultations have been covered in paragraphs 11, 13 and 22 above. Dr. Stubbs gave evidence to the Tribunal. His evidence was to the following effect:
(i)His opinions as expressed in the paragraphs referred to above were unchanged.
(ii)Pain due to a musculo-ligamentous injury was more likely to be eased by lying down and to be aggravated by movement whereas pain due to Scheuermann's disease was more likely to be worse with inactivity.
(iii)There is no evidence to support a theory that the applicant's pain is due to an old unhealed soft-tissue injury.
(iv)One would expect a positive bone scan with active ankylosing spondylitis.
Dr. Peter Boys, orthopaedic surgeon, saw the applicant in 1999 and again in 2001. Dr. Boys recorded that the applicant complained to him of interscapular pain in 1999 and pain in the lower thoracic spine in 2001. The applicant did not relate any symptoms in relation to his lumbo-sacral spine. The evidence of Dr. Boys was to the following effect:
(i)The applicant suffers from ankylosing spondylitis of the thoracolumbar spine.
(ii)The applicant's thoracic spine showed minor spondylotic changes.
(iii)The applicant possibly also had underlying Scheuermann's disease and that the progressive loss of movement of the thoracolumbar spine over more recent times (particularly the last three years) had reflected the progressive effects of inflammatory spinal disease.
(iv)The applicant may have suffered a soft-tissue strain over the thoracic region in the course of his employment with the Army but the ongoing complaints reflected primarily constitutional factors.
(v)Any service related aggravation of pre-existing disease was a temporary phenomenon.
(vi)The negative bone scan merely indicated that the inflammatory phase of ankylosing spondylitis had resolved.
(vii)The radiological appearances were not consistent with isolated injury occurring in 1982 or 1983. The changes indicated more generalised disease process whether it be the effects of old adolescent epiphysitis or simply multi-level degenerative disease.
(viii)In response to the report of Dr. Yaksich that the x-rays had shown no major changes of ankylosing spondylitis, Dr. Boys said that the changes were significant and evident and he disagreed with Dr. Yaksich.
(ix)In relation to the opinion of Dr. Kidd that no specific evidence of ankylosing spondylitis was seen in the thoracic spine, Dr. Boys said that the radiological changes would suggest that the condition was present and that the clinical findings of fixed rounded thoracic kyphosis in conjunction with the radiological findings are characteristic of a generalised inflammatory condition affecting both the thoracic and lumbar spine.
(x)It was unlikely that one would get a positive bone scan with Scheuermann's disease.

The case put for the applicant can be summarised as follows:
(i)The applicant has pain which causes incapacity in the thoracic region of his back.
(ii)The applicant suffered an injury to the thoracic region of his back during an Army rugby activity in August 1983 and he has had pain in that region of his back ever since.
(iii)He has never had Scheuermann's disease.
(iv)He has some generalised degeneration in his spine but it is of a minor nature.
(v)He has never complained of lumbar pain. Any reference in the medical records to complaints about lumbar pain have been misinterpretations made by the various medical examiners who mistakenly reported lumbar pain.
(vi)Although the applicant has diabetes and he has been grossly overweight for many years and these are risk factors in developing degenerative spinal conditions, they are not factors in Mr. Bentick's case.
(vii)The only logical explanation for Mr. Bentick's current thoracic back problem is that he suffered a soft-tissue injury in the rugby incident in 1983 and that, although such soft-tissue injuries would normally fully resolve within a few months, this injury has not resolved in nearly twenty years.
The evidence given by the three orthopaedic surgeons was all to the same effect. The applicant has a constitutionally based degenerative condition of the spine. Dr. Stubbs also diagnosed underlying Scheuermann's disease. Dr. Pentis thought the applicant may not have Scheuermann's disease. Dr. Boys thought that the applicant possibly also had Scheuermann's disease.
Dr. Boys was adamant that the radiological appearances of the applicant's spine were not consistent with isolated injury occurring in 1982 or 1983.
The question as to whether the applicant has ever complained about lumbar pain to treating doctors, or whether he has consistently complained of nothing but thoracic pain since August 1983, has assumed significance in this workers compensation case. If he has complained of lumbar pain as well as thoracic pain over the years, then the applicant's back problems are more likely than not to be due to constitutionally based spinal degeneration. Whereas, if the applicant has complained of nothing but thoracic pain since the work related injury in August 1983, the speculative and unlikely theory of unresolved soft-tissue injury at least has a chance of being an explanation for the applicant's back pain (in the absence of an explanation involving Scheuermann's disease).
The records available to the Tribunal show:
(i)In the first few months after the injury in August 1983, the applicant complained of pain in the thoracic region.
(ii)On 17 November 1983, an Army Medical Board recorded "gradually deteriorating low back pain" and "chronic low back pain".
(iii)On 21 February 1984, Dr. Sewell recorded: "The above member complains of recurrent pains in the Thoracic and Lumbar areas of his back".
(iv)On 23 March 1984, Dr. Stubbs recorded: "Episodic low back pain – about once yr. never major. 2/12: Kneed in back playing football – pain much worse since. Pain now: spread throughout spine".
(v)Army medical report September 1984: "Backache dorso lumbar area 'constant' since January 1984."
(vi)Army medical 13 September 1984: "Back/mid thoracic pain – overweight".
(vii)7 November 1984; Dr. Stubbs: "Continues to have lumbar pain only a little improved by wt. loss. Not worse with exs but rather worse with prolonged posture – e.g. sitting No problems with sport".
(viii)21 November 1984, Dr. Sewell: "Cannot lay down for more than 2-3 hrs as back aches ----Thinks the back pain has been exacerbated by the motor bike accident 30/3/84".
(ix)7 February 1985, Dr. Sewell: "Episodic low back pain."
(x)26 April 1985, Army Medical: "Involved in motor bike accident March 1984 Painful back since Flexion neck causes pain."
(xi)9 July 1987, Dr. Pratt: "Presented 7/4/87 complaining of (R) hip pain and low back pain for 4 weeks. He gave a past history in 1983 of sustaining low back pain after a football injury and having been discharged from the Army Voluntarily. On 19/6/87 presented with low back pain and (R) Sciatic which is still present."
(xii)16 November 1987, Dr. Corry: "I examined Mr. Bentick on 12 November 1987. As you are aware I have previously examined him on a number of occasions in relation to his low back pain.-----". (See also the excerpts from this report quoted in paragraph 17 above.)
The Tribunal does not accept that the medical professionals involved in the examinations of the applicant, referred to in the paragraph above, all made the mistake of incorrectly recording complaints by the applicant of pain in his lumbar spine. The Tribunal finds that the applicant experienced symptoms at times related to his thoracic spine and at other times related to the lower lumbar spine. His symptoms have not been continuously related to the site of the rugby injury. The Tribunal rejects those theories which relied on that proposition. In particular, the Tribunal rejects the theory that Mr. Bentick's back problems are due to an unresolved soft-tissue injury.
The Tribunal finds that Mr. Bentick's back problems are caused by a generalised disease process involving the spine. The generalised disease process affecting Mr. Bentick's spine did not arise out of nor in the course of his employment in the Army, nor was it contributed to by his employment in the Army.
The Tribunal affirms the decision to deny liability to pay compensation to the applicant.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Deputy President; Brigadier I.R.W. Brumfield, Member
Dr. K.P. Kennedy, OBE, Member
Signed:         .....................................................................................
           B. Hitchcock, Personal Asst
Date/s of Hearing  25, 26 February 2002
Date of Decision  10 September 2002
Counsel for the Applicant        Mr. R. Peterson
Solicitor for the Applicant         Bushnells
Counsel for the Respondent    Mr. C. Clark
Solicitor for the Respondent    Blake Dawson Waldron