Calleja and Military Rehabilitation and Compensation Commission

[2011] AATA 661

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 661

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2010/0102

VETERANS’ APPEALS DIVISION		)
Re		MICHAEL JOHN CALLEJA

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Ms J Toohey, Senior Member

Dr I S Alexander, Member

Date23 September 2011

PlaceSydney

Decision The decision under review is affirmed.

……………[sgd]……………
  Ms J Toohey
  Senior Member

CATCHWORDS

COMPENSATION – physical training instructor – accepted lower back injury – whether nature of duties aggravated cervical spondylosis causing neck pain and headaches – decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

23 September 2011

Ms J Toohey, Senior Member

Dr I S Alexander, Member

Background

1.      Michael Calleja joined the Royal Australian Air Force in 1983 when he was 16.  He worked as an aircraft technician until 1994, when he transferred to HMAS Cerberus where he undertook a course to become a physical training instructor.  He worked as a physical training instructor at RAAF gymnasiums at Amberley and Richmond until his discharge in May 2008.  He now manages a school camp.

2.      On 3 October 1994, while on his training course, Mr Calleja injured his back on a vaulting horse. The respondent accepted liability under the Safety Rehabilitation and Compensation Act 1988 (the Act) for his injury.

3.      These proceedings concern a claim lodged by Mr Calleja on 1 July 2008 for compensation for permanent impairment and non-economic loss for neck pain and headaches which he says resulted from the nature and conditions of his employment as a physical training instructor. 

4.      On 8 May 2009, the respondent determined that Mr Calleja had suffered an acceleration of a disease to which his employment had contributed in a material degree.  The respondent accepted liability under s 14 of the Act for cervical spondylosis with associated bilateral occipital headaches and determined that, for the purposes of the Act, the date of injury was 3 October 1994.

5.      On 4 November 2009, the respondent revoked its determination of 8 May 2009 and denied any liability for Mr Calleja’s cervical pain and headaches.  Mr Calleja seeks review of that decision.

The issue

6.      It is not in dispute that Mr Calleja has mild to moderate degenerative cervical spondylosis.  At issue are:

(a)whether the nature and conditions of his employment as a physical training instructor caused, or aggravated, his cervical spondylosis causing neck pain and headaches;

(b)if so, whether that condition is permanent;

(c)if it is permanent, whether the degree of impairment is 10 per cent or more.

7.      For Mr Calleja’s condition to be a compensable injury within the meaning of the Act as it was at the relevant time, we must be satisfied that the nature and conditions of his employment contributed to his condition in a material degree: s 4.

Mr Calleja’s evidence

8.      As a physical training instructor, Mr Calleja’s activities included vaulting and “old Navy traditions” such as cup swinging, handstands and jumping over chairs.  There were also activities such as running through obstacle courses, carrying logs and backpacks through mud, throwing logs from team to team, rope climbing, frequent squatting, lifting, lunging and push-ups, and long distance running. 

9.      Mr Calleja injured his back on a vaulting horse in October 1994.  He gave evidence that he felt severe pain in his lower back immediately, and was hospitalised for seven days.  His neck was placed in a brace as a precautionary measure, pending scans.  He does not claim to have suffered an actual injury to his neck, or neck pain, at this time.

10.     A report of Mr Schofield, the orthopaedic surgeon who treated Mr Calleja’s back injury in October 1994, shows that, by 28 October 1994, he had gradually mobilised, was doing simple exercises and, apart from some lumbar stiffness and pain in the morning, he was “virtually pain free”. 

11.     Mr Calleja spent the remainder of his seven-month training course on restricted activities.  As he had undertaken most of the course by the time of his injury, he was able to complete the remainder successfully.  In December 1994, he graduated and started work, without restrictions, as a physical training instructor at the gymnasium at the RAAF at Amberley. 

12.     In 1996, Mr Calleja was posted to the RAAF at Richmond.  He worked there as a physical training instructor until 2000 when he was promoted to sergeant.  His promotion meant he became the manager of the facility, which took him off the floor, and he was no longer running classes.  His duties became more managerial, and less physical, but he continued to keep fit doing a range of physical activities including cycling, walking, running and kayaking.

13.     Clinical notes show that Mr Calleja presented at hospital in September 1996 with an acute back injury over the weekend.  He has no recollection of this injury, and nothing more is known other than that he had six physiotherapy sessions following the injury. 

14.     Mr Calleja gave oral evidence that he had always had some neck pain and headaches since the 1994 injury but it “sort of started to come to light” in the early 2000s.  He gave evidence that he started to suffer from neck pain, which he describes as a constant dull tension in his shoulder, and headaches, around 2000.  He describes himself as “not one to complain”.  He lived with the neck pain and headaches and, other than sporadic physiotherapy, did not seek treatment but managed both with massage, hot packs and the like. 

15.     In 2003, Mr Calleja was posted to a non-combat position in Iraq.  While there, he aggravated his lower back when moving some equipment in the gymnasium.  It caused him “some pain” in his lower back but his neck pain and headaches were “pretty well the same level that [he] had always experienced”. 

16.     In 2004, Mr Calleja attended leadership school and became a facilitator, a position which involved no physical activity, but he continued to maintain his physical fitness with activities outside work such as adventure training, triathlons, cycling, walking and running.

17.     Mr Calleja says his neck pain and headaches became worse after an incident towards the end of March 2004 (the “water-skiing incident”).  Some documents put the date of this incident at 2005 but 2004 seems to be correct, although little turns on this.  Mr Calleja was being towed on a kneeboard behind a boat.  There was no accident or impact but, immediately afterwards while sitting on the shore, he felt pain across his shoulders up into his neck and “an immense tension headache”. 

18.     Mr Calleja describes the water-skiing incident as “somewhat of a wakeup call to put aside my stubbornness and actually get some medical treatment for what was an ongoing issue”.  He saw a chiropractor with good results.  However, he says, he has suffered serious neck pain and headaches at least once a month since 2004 which become worse, depending on his activity.

19.     In September 2005, Mr Calleja was pushing bales of hay into a truck on his property when he developed severe neck pain and a headache and had to lie down.  He saw a chiropractor who recommended he have an x-ray and an MRI of his neck.

20.     Mr Calleja concedes that, at no time, did he complain of symptoms associated with the nature and conditions of his duties as a physical training instructor.  He says the reason is that he was always more focussed on his back pain.

Consideration

21.     We accept that Mr Calleja experiences neck pain and headaches.  However, a number of the medical reports and related documents before the Tribunal suggest a different history from that which he gave in oral evidence. 

22.     The respondent does not suggest that Mr Calleja has been untruthful, and nor do we.  The report of a performance review in September 2005 shows he was a highly respected employee who showed “outstanding leadership” and was an “excellent representative” of the defence force.  We are satisfied that he did his best to recall his various injuries and the pain he had at different times.  However, for the reasons which follow, we are not satisfied that his recollection is reliable.

23.     By way of background, the evidence shows that Mr Calleja has generally been in good health since 1994.  As part of his employment, he underwent six-monthly health assessments conducted by the Department of Defence.  He passed every assessment except in January 2006 when he failed the sit-up component of the test.  Mr Calleja acknowledges that he failed that examination due to “a lack of fitness or motivation” on his part.  In 2003 he was certified fully fit for deployment to Iraq.  In March 2008, he was assessed as Medical Employment Category 1, meaning he was deployable to all duties.

24.     We accept Mr Calleja’s evidence that he has tended to minimise the effects of his neck pain and headaches and is not someone to complain.  However, there is considerable inconsistency in the history he has given to different doctors which, insofar as they have relied on the history he gave them, tends to undermine their conclusions.

25.     Mr Calleja presented at hospital on several occasions for various injuries but made no mention of his neck pain or headaches.  He presented to the hospital in September 1996 with an acute back injury.  The final report of the physiotherapist following that injury makes no reference to neck pain.  In October 1996, he attended at hospital for ear problems.  In June 1998, he attended at hospital for a finger injury.  In December 1998, he attended at hospital after increasing back pain over several months and was referred for physiotherapy (records show this was related to cycling and was not work-related).  In April 2000, he went to hospital for a knee problem. 

26.     Although he could not recall these hospital attendances in any detail, Mr Calleja agrees that he made no mention of neck pain or headaches on any occasion. A single occasion might not itself be surprising but, even allowing they did not trouble him greatly before around 2000, it is difficult to understand why he made no mention of them at all before then.  More significantly, he did not seek any treatment for neck pain or headaches until after the water-skiing incident in 2004.

27.     In November 2001, Mr Calleja saw Dr Peter Isbister, a consultant orthopaedic surgeon, about his lower back pain.  Dr Isbister’s report shows that Mr Calleja complained of tightness across his lower back and aggravation of his back pain if he sat or stood for too long, and that a recent fracture in his left clavicle had healed but still caused irritation when carrying packs.  There is no reference in the report to neck pain or headaches.  Asked about this, Mr Calleja said he was always more focussed on his back pain and “just didn’t” tell him.

28.     In February 2002, Mr Calleja underwent a Complete Preventative Health Examination as part of which he completed a health examination questionnaire.  Clinical examination of his neck showed it was “normal”.  In response to the question “Have you ever suffered migraines or severe headaches?” he responded “No”.  In oral evidence, Mr Calleja said he did not believe his headaches were so severe as to describe them as migraines.

29.     On 16 April 2003, Mr Calleja underwent an Annual Health Assessment, the report of which shows that he answered “No” to the questions “Do you have any current illnesses?” and “Do you have any current injuries?”

30.     In June 2005, Mr Calleja asked to be referred to a chiropractor for back pain.  He saw the chiropractor only intermittently but says he did a lot of “self-treating” by using things available to him at work including gels, hot packs, and stretching.  The chiropractor’s report shows that Mr Calleja told him he had “never before” experienced headaches.  In oral evidence, Mr Calleja said that what he meant by this was that he had never before had serious headaches.  Given that he had been experiencing headaches for some time, we have some difficulty accepting that explanation. 

31.     In September 2005 and November 2005, Mr Calleja saw Dr Kevin Bleasel, a neurosurgeon, about his back.  Although Dr Bleasel noted that “he was never a headache or migraine sufferer”, he did note that Mr Calleja complained of “neck tension and headaches associated with muscle spasm upper thoracic and neck”. 

32.     Dr Bleasel recorded a history of the back injury in October 1994 and related Mr Calleja’s neck pain and headache to that incident.  He thought both could be explained by the fact that Mr Calleja had hyperextended his neck, causing musculoligamentous damage, with pain gradually ascending up his spine from the lower back injury.  Dr Bleasel does not mention the water-skiing incident, and Mr Calleja conceded in oral evidence that he did not mention it, or related neck problems, to Dr Bleasel. 

33.     In December 2007, Mr Calleja was referred to Dr Sheridan, a neurosurgeon, for his lower back pain and sciatica.  In brief notes on the referral form, Dr Sheridan recorded he was having no specific treatment; he could manage his symptoms with exercise and needed no intervention.  There is no reference to neck pain or headaches.

34.     In July 2007, Mr Calleja saw Dr John Matheson, a neurosurgeon, at the request of the respondent.  Dr Matheson reported that, after the 1994 injury, Mr Calleja “went along alright until the year 2000 when he began to get some recurrent back pain” which he put up with.  He noted that “over the past year” Mr Calleja had developed some neck pain and stiffness.  His report appears contradictory in parts in that it appears to say that the 1994 injury did - and also did not - cause a neck injury or condition.  We have not had the benefit of hearing from Dr Matheson and his report does not assist us.

35.     In July 2008 prior to his discharge, Mr Calleja underwent a Five Yearly Comprehensive Preventative Health Examination.  The assessment report shows that he answered “Yes” to the question “Do you suffer migraines or severe headaches?”  It notes that “Headaches and neck pain claim is currently with MCRS” but otherwise the report refers only to back pain.

36.     A report of Mr Calleja’s performance review in September 2005 speaks highly of how he had assisted staff members with advice on physical fitness training programs and how “any student injury is swiftly diagnosed and dealt with by him and he ensures proper reporting of the incident is always submitted”.  In oral evidence, Mr Calleja said he is sometimes better at looking after others than himself, and we accept that is probably so.  However, it remains that we have a patchy and often inconsistent account from him of his medical history.

37.     The histories taken by Professor Michael Fearnside, and by Dr John Grant, neurosurgeons, are considered below.

Professor Fearnside’s evidence

38.     Professor Fearnside saw Mr Calleja for examination in February 2008.  He has provided written reports and gave oral evidence.  He noted that x-rays showed moderate mid-level cervical spondylosis.

39.     On 18 February 2008, Professor Fearnside reported a history of the 1994 injury followed by back pain and sciatica intermittently over the years which improved with physiotherapy.  He noted that Mr Calleja fractured his left clavicle in 2001 while bike riding and that he reported it was after this time that he developed tension and restriction of movement in his neck. 

40.     Professor Fearnside noted in his report that Mr Calleja’s neck pain commenced in 2004; the first severe episode occurred after water-skiing and lasted for about five days; he had good relief from a chiropractor but has since continued to suffer neck and low back pain; between 2004 and 2008 he had intermittent neck pain, and headaches at least three times a month which were severe enough that he had to lie down. 

41.     Professor Fearnside concluded in his report that it was “possible” that Mr Calleja sustained an injury to his neck when he injured his back in 1994 although, if so, it was more likely than not a minor injury because he did not experience significant neck pain for eight to ten years thereafter.  He thought the nature and conditions of Mr Calleja’s employment “could, and on the balance of probability did, contribute to an acceleration of the cervical spondylosis” and it was not possible to exclude a contribution from the 1994 injury to this acceleration.  He thought that, but for the cervical spondylosis, Mr Calleja would not experience the headaches of which he complained.

42.     In oral evidence, Professor Fearnside agreed that he relied for his conclusions on the history he took from Mr Calleja and, in the absence of x-rays before 2005, it was all he had to rely on.  Although he still thought that Mr Calleja’s employment made a material contribution to his cervical spondylosis, he agreed there were inconsistencies between the history he took and that taken by others, and some inaccuracies.  For example:

(a)although he took a history of the injury in 1994, Mr Calleja did not give him a history of neck pain at that time;

(b)he took a history that Mr Calleja was on restricted duties for “a prolonged period of time” after the 1994 injury (but did not note for how long) when it was in fact only about two months;

(c)he was not aware that Mr Calleja had an acute episode of back pain in September 1996;

(d)his record of when Mr Calleja’s neck pain started was inconsistent with the record of the chiropractor who saw him after the water-skiing incident;

(e)he did not take a history of headaches prior to the water-skiing incident and agreed it would be significant if Mr Calleja did not have headaches prior to 2005;

(f)he was not aware of the “hay bale” incident in September 2005 when Mr Calleja hurt his back, although he said it would not have altered his opinion because both the water-skiing and that incident caused a symptomatic aggravation;

(g)he thought Mr Calleja had a “hands-on type of job” from 2002 to 2003, whereas Mr Calleja’s evidence was that he was in a managerial position from around 2000; that he apparently did lighter work that he had thought, and his physical activity happened more outside work;

(h)he had thought it significant that Mr Calleja had to carry back packs but agreed his opinion would change if that were not the case after 2000 (as Dr Bleasel had noted);

(i)the history he took of Mr Calleja’s physiotherapy, and treatment generally, was not consistent with Mr Calleja’s evidence.

43.     In response to questions from the Tribunal, Professor Fearnside said he thought the nature and conditions of Mr Calleja’s employment “could well have contributed in a subtle way” to his neck pain and headaches but, in the absence of x-rays or an MRI from the early 2000s and follow-up scans later, there was no objective way of measuring any contribution.

44.     In cross-examination, Professor Fearnside agreed that his opinion that Mr Calleja’s employment accelerated his cervical spondylosis was speculative and based on the history he took from Mr Calleja of tightness across his shoulders from around 2001 or 2002.  He agreed that it was significant that no other practitioner had taken that particular history, and that it was a “fairly vague, non-specific” complaint which could equally represent simple muscle tension.  He agreed that the degenerative changes in Mr Calleja’s cervical spine are not uncommon in people his age, including in people who are asymptomatic.

Dr Grant’s reports

45.     Dr Grant examined Mr Calleja in June 2010 at the request of the respondent, and has provided written reports.  Unfortunately, he was not available to give oral evidence because of his own health problems.  In the circumstances, representatives for the parties, as well as the Tribunal, agreed we should proceed without adjourning further to hear his oral evidence.   

46.     Dr Grant’s reports show he took a history from Mr Calleja of neck discomfort and neck pain over the previous two to three years, and that he developed severe neck pain and headache since the incident at his farm in September 2005.  Dr Grant thought this incident “significantly aggravated” his neck pain and headaches, and he had “no doubt” that it marked the onset of his cervical symptomatology. 

47.     Dr Grant found no evidence of an incident while on duty that produced acute symptoms in Mr Calleja’s cervical spine but he did not exclude the possibility of a work-related aggravation.  He noted that radiological findings suggested “possibly minor spondylitic changes in the cervical spine which could be aggravated by the physical activity in which he was involved in his employment”.  Further that, “if he complained of significant stiffness and discomfort and headache whilst undertaking physical activities which involved him in lifting weights while working the services, one would consider this was again an aggravation of a possible underlying spondylitic process”.  Further, “the production of symptoms by the type of physical activity he was involved in in the air force … would only be an indication that the spondylosis was already in evidence but not caused by those activities”.

48.     Insofar as they suggest the possibility that the nature and conditions of Mr Calleja’s employment aggravated his underlying condition, Dr Grant’s reports tend to support his claim.  However, they do no more than suggest a possible causal connection. 

49.     Mr Calleja conceded in oral evidence that he told Dr Grant that he injured his back in 1994 but did not mention his neck.  We note also that Dr Grant recorded that Mr Calleja was on restricted duties for seven months after that injury when it was in fact two months.  We have not had the benefit of hearing from Dr Grant about either matter.  We do not disregard his reports entirely but they do not lend sufficient weight to find in Mr Calleja’s favour. 

Conclusion

50.     The inconsistencies in Mr Calleja’s medical history make it unreliable.  However, even if we could reconcile the inconsistencies in his account, the medical evidence does not support a finding in his favour. 

51.     The weight of the evidence favours the conclusion that Mr Calleja’s neck pain and headaches started after the water-skiing incident in 2004.  However, even if we accept that they were always present to some degree after the 1994 injury, we are not satisfied on the evidence before us that the nature and conditions of Mr Calleja’s employment contributed in a material degree to his neck pain and headaches. 

52.     Mr Calleja’s claim rests very largely on Professor Fearnside’s evidence.  Professor Fearnside agreed that his opinion rested firmly on the history he took from Mr Calleja.  As we have said, that history is not reliable.  Moreover, Professor Fearnside agreed that his opinion that Mr Calleja’s neck pain and headaches were related to the nature and conditions of his employment was speculative.  In the end, he could put it no higher than a possibility.  Dr Grant’s reports suggest, at best, the possibility of a causal connection.

53.     On the evidence before us, we are not satisfied, on the balance of probabilities, that the nature and conditions of Mr Calleja’s employment caused, contributed to, or aggravated his cervical spondylosis and find the respondent is not liable to compensate him in respect of that condition and the associated headaches.  It follows that it is not necessary to determine either whether his condition is permanent or the degree of impairment.

Decision

54.     We affirm the decision under review.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr I S Alexander, Member.

Signed ..........[sgd]....................................................................
           C. Taylor, Associate

Date/s of Hearing  17, 18 May and 12 September 2011
Date of Decision  23 September 2011
Counsel for the Applicant         Mr G Niven
Solicitor for the Applicant          Mr B Mason, Slater and Gordon
Counsel for the Respondent     Mr B Kelly
Solicitor for the Respondent     Ms A Bortone, Sparke Helmore