Buckmaster and Military Rehabilitation and Compensation Commission

[2008] AATA 266

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 266

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D 200600017
  )          No D 200600024

VETERANS’ APPEALS DIVISION		)
Re		Leigh Buckmaster

Applicant

And Military Rehabilitation and Compensation Commission

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date2 April 2008

PlaceBrisbane (heard in Darwin)

Decision The Tribunal affirms the decisions under review.

......................[Sgd]........................

SENIOR MEMBER

CATCHWORDS

COMPENSATION – back condition – whether applicant suffers from whole permanent injury of 10% or more – whether applicant suffers from sciatica – decision affirmed

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27

REASONS FOR DECISION

2 April 2008 Senior Member Bernard J McCabe         

1.      Mr Leigh Buckmaster has a back condition. He says it developed as a result of injuries he sustained while serving in the military. The Military Rehabilitation and Compensation Commission acknowledges he has a condition although it does not agree on the diagnosis. It also denies it is liable to pay lump-sum compensation pursuant to ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (“the SRCA”).

2.      It is necessary for me to deal with two main issues in the course of these proceedings. Firstly, I must determine whether the applicant experiences a “whole person impairment” of 10% or more, as the applicant is only eligible for a compensation payment under the SRCA if he has a whole person impairment of at least 10%. Secondly, I must determine whether the applicant suffers from sciatica, and, if he does, whether the Commission is liable for that condition.

The factual background

3.      Mr Buckmaster served in the Army between 1973 and 2002. He testified that he sustained a back injury at a sports day in 1989. He said he was required to participate in the sports day as part of his employment. The respondent did not dispute that participation in the sports day was part of the applicant’s job.

4.      The applicant testified that he felt a crunch in his lower back when he performed the triple jump. An hour later, he bent over and could not stand up. He was taken home in an ambulance. He was provided with medical treatment over the following weeks including physiotherapy. He told the Tribunal pain from the injury persists to this day.

5.      Mr Buckmaster said in his statement that he experiences a chronic dull pain in his lower back. The pain remains relatively constant if he avoids running and lifting heavy objects. He said he is still able to undertake tasks like walking his dogs up to about 2.5 kilometres at a slow pace on a regular basis, but he explained in his statement that the condition would flare up every six to eight weeks. He said he has difficulty with slopes and steps when he is in that state, although he could still walk up to a kilometre slowly. He said in his statement he becomes completely debilitated on three or four occasions a year. He explained: “I cannot move very much at all and sometimes cannot even get out of bed.” In his oral testimony, he said he could not be sure what causes the flare-ups; it might be the result of lifting something or sleeping awkwardly.

6.      The applicant acknowledged he experienced some back problems before he sustained the injury at the sports day in 1989. He referred to “back sprains” during cross-examination. His service medical records also show that he suffered from pes planus at the time of his enlistment. He acknowledged his feet are sometimes painful. He agreed in cross-examination that his foot condition affects his ability to walk distances and to negotiate steps and sloping ground. He also acknowledged a knee condition causes him pain but he insisted it is not a constant source of difficulty.

7.      Mr Buckmaster said he has difficulty exercising because of his various conditions. In answer to a question from his counsel, the applicant said the exercises prescribed for one injury tended to aggravate the other injuries. He illustrated the point during cross-examination: he explained his knee and shoulder conditions prevented him from undertaking exercises in the pool designed to treat his back problems.

The medical evidence

8.      The applicant called Dr Purssey to give evidence at the hearing. Dr Purssey is a general surgeon with experience in treating orthopaedic conditions. His report said Mr Buckmaster suffered from mechanical low back pain and sciatica associated with degeneration of the lumbar spine and prolapse of the L5/S1 disc. Dr Purssey confirmed that he had observed a number of positive signs of sciatica, including decreased sensation in one of the toes, wasting of the left calf and an abnormal left ankle jerk.

9.      Dr Purssey concluded the applicant’s back condition resulted in a loss of less than half normal range of movement of his lumbar spine, which equates to a whole person impairment of 10% under Table 9.6 of the Comcare guide. He also concluded the applicant had difficulty with grades and steps as a result of sciatica. That resulted in a whole person impairment of 10% under Table 9.5 of the Comcare guide. He speculated in his report about the possibility of a whole person impairment of 20% if it could be established that the applicant had difficulty with distances as well.

10.     Dr Purssey confirmed in cross-examination that he reached his view and prepared his report without having access to all of the applicant’s medical records. He said the CT scan in 1989 in particular was unlikely to be of assistance. He agreed that he did not use a measurement device when assessing the applicant’s difficulty with grades. He also agreed that he had not taken into account the effect of the applicant’s pes planus or knee conditions when assessing the applicant against the Comcare tables. He said the applicant was not complaining of pain from those conditions at the time of the examination.

11.     Dr Rowe was also called by the applicant. He is an occupational physician. He concluded Mr Buckmaster experienced a 20% whole person impairment under Table 9.5 (which refers to the lower limbs) and 10% under Table 9.6 (which refers to the lumbar spine). He reported wasting in the calf and decreased sensation in one of the toes, which he said indicated a neurological problem associated with sciatica. Under cross examination, Dr Rowe agreed that he had not seen all of the Army medical records, although he recalled seeing a CT scan. He said the scan showed a disc prolapse compromising the nerve root, but he acknowledged that feature was not recorded in the report accompanying the scan. He also conceded the assessment of a 20% whole person impairment under Table 9.5 did not distinguish between the contributions made by his various conditions, including those for which liability has not been accepted.

12.     The respondent’s principal medical witness was Professor McPhee. Professor McPhee has a distinguished academic record and he has specialist experience as a spinal surgeon since 1974. He said the applicant experienced only minor restrictions in movement as a result of his back condition. Professor McPhee found there was a 5% whole person impairment under Table 9.6 of the Comcare guide. He said the applicant did not demonstrate any of the neurological or other signs one would expect if the applicant experienced sciatica. Professor McPhee observed a slight abnormality in the ankle jerk but did not think it was significant. He said the calf circumference was the same in each leg. He also said it was impossible to identify a painful nerve root impingement from a CT scan. His clinical observations suggested the applicant experienced mechanical lower back pain.

13.     The Commission also relied on the report of Dr Walters. Dr Walters was not available for cross-examination, and Mr Lee for the applicant said I should give the report limited weight as a result. Given the questions Mr Lee raised over the accuracy of some of the observations in the report, I agree it is of limited value.

14.     The most persuasive medical witness was Dr Homolka. Dr Homolka is an occupational physician. She examined Mr Buckmaster at the Commission’s request. She concluded the applicant’s range of movement in his back was not unusual for a man of his age who had been diagnosed with lumbar spondylosis. She opined that the applicant experienced a 10% whole person impairment under Table 9.6 but added that she did not think the condition was permanent. She said the degree of impairment would be reduced if Mr Buckmaster adopted a regime of back-specific exercises. Mr Lee asked whether the applicant’s other conditions would prevent him from doing that, but she insisted a suitable regime could be devised which took into account his other disabilities. She also said she suspected the applicant’s diminished range of movement might be explained by a psychiatric condition. She recommended that he be referred for assessment.

15.     Dr Homolka said the applicant did not experience sciatica. Her report (exhibit one at p 126) said there was no evidence of muscle wasting or atrophy and the circumferential measurements of each calf were the same. She said the sciatica-like symptoms Mr Buckmaster reported were accounted for by lumbar spondylosis. She concluded the applicant did not have difficulty with his lower limbs that could be attributed to his work injury and declined to assign a rating under Table 9.5 in respect of sciatica, although she did suggest in her report that Mr Buckmaster’s non-work related pes planus condition resulted in a 20% whole person impairment under Table 9.5.

16.     Dr Homolka’s written report was thorough. She took an extensive history from the applicant and had access to all of his records. Her examination of the applicant’s range of movement was conducted using a goniometer. Her measurements of the applicant’s calves and other observations were carefully recorded. Her oral evidence was precise. Her conclusions are also broadly consistent with those of Professor McPhee, who is an expert in spinal conditions.

17.     I am satisfied the medical evidence establishes that the applicant currently experiences a 10% whole person impairment under Table 9.6 (relating to his back) but does not experience any impairment under Table 9.5 (which deals with his lower limbs). I also accept the applicant’s back impairment could be significantly improved if he undertook appropriate treatment.

The law

18.     Section 24(1) of the SRCA obliges the Commission to compensate a person whose work-related injury results in a permanent impairment. Section 24(2) sets out a range of factors to which the Commission must have regard when determining whether the impairment is permanent.

19.     Dr Homolka’s evidence suggests the applicant’s back condition could be significantly improved if he undertook an appropriate exercise regime. Dr Homolka’s optimism weighs heavily against a finding that the impairment is permanent. The fact the applicant has not been referred for psychiatric treatment suggests obvious and reasonable treatment options have not been explored—and it is a further factor which weighs against a finding that the impairment is permanent. I accept the applicant’s other physical problems have been an obstacle and that his impairment has been present for some time. On balance, having regard to all of the factors set out in s 24(2), I am not satisfied the applicant’s back impairment could be said to be permanent. It follows the respondent is not liable to compensate him under s 24 in respect of that condition.

20.     I have also accepted Dr Homolka’s conclusion that the applicant does not suffer from sciatica. In those circumstances, the Commission cannot be held liable to compensate the applicant pursuant to s 14.

conclusion

21.     The decisions under review are affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .....................................[Sgd]................................................
  Michael Buckingham, Associate

Date of Hearing  13 – 14 December 2007
Date of Decision  2 April 2008
Counsel for the applicant          Mr S Lee
Counsel for the respondent      Mr C Clark
Solicitors for the applicant        D’Arcys Solicitors
Solicitors for the respondent    Dibbs Abbott Stillman Lawyers