Cameron Brough and Military Rehabilitation and Compensation Commission

[2014] AATA 879

[2014] AATA 879 

Division	General Administrative Division
File Number(s)	2011/2905; 2013/2070
Re	Cameron Brough
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	26 November 2014
Place	Sydney

The Tribunal in application 2011/2905:

1.   sets aside the decision of the Military Rehabilitation and Compensation Commission dated 2 June 2011; and

2. in substitution, determines that liability for a disc bulge at L5/S1 level sustained by Mr Brough on 4 August 2009 is accepted in accordance with section 23 of the Military Rehabilitation and Compensation Act 2004 (Cth).

3.   directs that within 14 days of the date of this determination each party may apply to the Tribunal for orders in relation to costs;

4.   orders that, should neither party apply in accordance with the preceding direction, the costs of the proceedings incurred by Mr Brough are to be paid by the Commonwealth.

The Tribunal in application 2013/2070:

1.   sets aside the decision of the Military Rehabilitation and Compensation Commission dated 10 April 2013;

2. remits the matter to the Commission for reconsideration in accordance with section 68 of the Military Rehabilitation and Compensation Act 2004 (Cth) and directs that Mr Brough has an age adjusted impairment rating of 11 under Tables 3.3.2 and 3.6.1 of the Guide to Determining Impairment and Compensation (GARP M);

3.   orders that the costs of the proceedings incurred by Mr Brough are to be paid by the Commonwealth.

............................[sgd]............................................

Deputy President J W Constance

Catchwords

COMPENSATION – Military Rehabilitation and Compensation Act 2004 – whether Applicant suffered a service injury – meaning of injury – disc bulge – whether injury resulted from occurrence that happened whilst rendering defence service - determination to be made to the reasonable satisfaction of the decision maker – decision set aside and substituted

COMPENSATION - Military Rehabilitation and Compensation Act 2004 – permanent impairment – whether can consider previously non-accepted condition – assignment of impairment rating for loss of musculoskeletal function – decision set aside and remitted

Legislation

Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 5(1)

Military Rehabilitation and Compensation Act 2004 (Cth) ss 5(1), 23(1), 27, 68(1)

Cases

Health Insurance Commission v Van Reesch (1996) 45 ALD 302

Kennedy Cleaning v Ptekoska (2000) 200 CLR 286

Secondary Materials

Guide to Determining Impairment and Compensation (GARP M)

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

1. Mr Brough has been a member of the Australian Regular Army since 2004.

2. In 2009 Mr Brough was injured in a fall whilst engaged in an Army Basic Parachute Course. He lodged a claim for compensation for his injuries in accordance with the Military Rehabilitation and Compensation Act 2004 (Cth). His claim was in respect of several distinct injuries to his spine – endplate fractures to T12 and L1, fractures to the right transverse processes of T8 and T9 and a disc bulge at L5/S1 level. He also claimed compensation for permanent impairment arising from the injury to his spine.

3. The Commission has accepted liability for the fractures.  However, in a determination dated 7 February 2011, liability for the disc bulge was denied.  This determination was affirmed on 2 June 2011. Mr Brough has applied to the Tribunal to review the latter determination.

4. The Commission also determined that Mr Brough was not entitled to compensation for permanent impairment as his impairment was not such as to justify a rating of the requisite 10 impairment points.  This determination was affirmed by a further determination made 10 April 2013.  Mr Brough also seeks a review of this determination.

   PART A

   APPLICATION 2011/2905  -  CLAIM FOR COMPENSATION FOR DISC BULGE INJURY

THE ISSUES

1. Mr Brough’s claim for compensation for a disc bulge at L5/S1 raises the following issues:

   (a)Has Mr Brough suffered an injury as defined in the Military Rehabilitation and Compensation Act?

   (b)If yes, is that injury a service injury?

   LEGISLATION

2. Subsection 23(1) of the Military Rehabilitation and CompensationAct details when the Commission must accept liability for an injury suffered by a member of the defence forces. It provides:

   (1) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:

   (a) the person's injury or disease is a service injury or disease under section 27; and

   (b) the Commission is not prevented from accepting liability for the injury or disease by Part 4; and

   (c) a claim for acceptance of liability for the injury or disease has been made under section 319.

3. Subsection 27 (a) provides that an injury sustained by a person is a service injury if “the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service”.

   BACKGROUND

4. Unless otherwise stated the following findings of fact are based on the evidence of Mr Brough.  I am satisfied of the facts found on the balance of probabilities.

5. On 4 August 2009, Mr Brough was engaged in parachute training in the Australian Defence Force – Army.  During a parachute jump, when he was about 5 to 6 metres from the ground, his parachute failed and he hit the ground heavily, landing on his buttocks with his legs raised. He immediately felt pain in his back.

6. On the day of the accident he was taken to an Army hospital and then transferred to the Wollongong Base Hospital. On 10 August 2009, Mr Brough was transferred to the Holsworthy Military Hospital. He was discharged from hospital two days later and took convalescent leave.  His recollection is that immediately following the accident he required assistance to do tasks such as showering, toileting and getting into and out of the hospital bed. His recollection is that he was in this condition for many days, although he is unsure as to the exact number. He was on strong medication at the time.

7. Mr Brough wore a thoracic brace for approximately 6 weeks following the accident. Approximately 3 months after the accident he felt that he had recovered his pre-accident strength, although he continued to suffer back pain.

8. Mr Brough returned to work on restricted duties on about 1 September 2009.

9. In a statement made on 19 August 2014 Mr Brough said, in part:

   Since recovering from the accident I experienced discomfort in my lower back if I stand stationary for more than a couple of minutes. I am also a member of a high tempo and highly regarded defence Unit …… where I have deployed [overseas] a number of times over the past few years.

   ……

   Discipline is a very big part of being a defence member and that is just how I train myself to manage the injury and pain without needing to draw attention to myself.

   This causes me to continually change my standing position and body weight from one foot to the other. If I am required to stand without moving, such as for a parade or a memorial, the discomfort quickly develops into pain within ten minutes. The longer I stand in one position the more intense the pain becomes, with it progressing to a severe pain between 10 – 30 mins.

   After a long period of standing stationary without moving, say around and beyond 30 mins, I have difficulty walking greatly reduced flexibility in my back. These walking and flexibility issues can last up to an hour.

   ……

   I also find I have discomfort if I am seated for approximately 20 – 30 mins or more. Usually if I am able to move and stretch my back in a seated position the discomfort rarely progresses into pain. Even sitting in an air plane means I can stretch but after a period of time, even with the stretching, the fact that you are sitting there leading up to and beyond half an hour can produce a level of pain.

10. Mr Brough had not experienced back pain prior to the accident.

    Medical records and investigation following the accident

11. The Field/Transport Medical Report relating to the transport of Mr Brough from the scene of the accident to the medical centre includes:

    5-6 m drop – pain lower back

    L1-L2 – bilateral (more left) [1].

    [1] Exhibit R1 p.22.

12. The Discharge Summary prepared by Wollongong Hospital on 10 August 2009 noted:

    CT of the cervical, thoracic and lumbar spine revealed fractures of the right transverse processes of T7 and T8 and a minor compression fracture involving the anterior and superior aspect of the body of L2.  There was no retropulsion.

    ……

    Follow up plain films of the thoracolumbar spine revealed no further collapse of the vertebral bodies.[2]

    [2] Exhibit R1 p.28.

13. A CT scan was taken of Mr Brough's thoraco-lumbar spine on 1 September 2009.  In addition to reporting the accepted conditions (being the fractures) Dr Sharma reported also:

    A transitional vertebra is seen at L5-S1 …..

    ……

    Note is made of mild L5-S1 disc bulge. [3]

    CONSIDERATION

    Issue 1:  Has Mr Brough suffered an injury?

    Does Mr Brough suffer from the condition of a bulging disc at L5/S1?

    [3] Exhibit R1 p.91-92.

    Report of Dr Sharma, Radiologist

14. The existence of a disc bulge at L5/S1 was noted by Dr Sharma in his report following the CT scan carried out on 1 September 2009.

    Report of Dr Soon, Medical Officer Holsworthy Barracks

15. In a report which formed part of Mr Brough's application,[4] Dr Soon recorded his diagnosis as “mild L5-S1 Disc Bulge”.  Dr Soon did not give evidence and I am unable to determine the basis for this diagnosis, although it is likely to have been based on Dr Sharma’s report.

    [4] Exhibit R1 p.104

    Evidence of Dr P. Giblin, Orthopaedic Surgeon

16. Dr P. Giblin, Orthopaedic Surgeon, examined Mr Brough in August 2012 for the purposes of these proceedings. He provided a report dated 21 August 2012,[5] and gave evidence.

    [5] Exhibit R1 p.206.

17. In the opinion of Dr Giblin, the physical force which travelled through Mr Brough's spine when he landed on his buttocks would have been “massive”, [6]  and a diagnosis of a bulge of the L5/S1 disc in addition to the fractures is consistent with such force entering and exiting the spine.The absence of a previous history of back pain is “most supportive” of this diagnosis. 

    [6] Transcript 16/09/14.

18. In his report Dr Giblin stated:

    Based on his history and examination, this gentleman has the provisional diagnosis of bony and soft tissue injuries to his thoraco lumbar spine.

    ……

    The soft tissue injury to his lumbar spine would be, primarily, in relation to the lumbar discs being affected by the transmission of the force from his buttocks up through his lumbar spine to the point of exit, as noted by the bony injuries.[7]

    [7] Exhibit R1 pp.208-209.

    Report of Dr M. Giblin, Orthopaedic Surgeon

19. In September 2009, Mr Brough was referred to Dr M. Giblin for treatment.  Mr Brough consulted Dr Giblin in September 2009 on two occasions and again in September 2010.

20. On 18 January 2011[8] Dr Giblin reported:

    I have no history of an injury at L5/S1 and I refer you to the C. T. Scan report of the 1 September 2009 where it says “a transitional vertebra is seen at L5/S1. Vertebral body height and alignment is normal. There is no evidence of retropulsed fracture fragment and no evidence of posterior extension in the central canal is shown”.

    I have no history to indicate an L5/S1 disc bulge.

    ……

    If you require more precise information, I would suggest an M.R.I. Also the L5/S1 is a transitional vertebra and these are usually protected, i.e. they are less likely to be damaged than other vertebra. With regard to the disc bulge, I am unable to comment without seeing an appropriate x-ray such as an M. R. I.

    [8] Exhibit R1 p.135.

    Evidence of Professor Ehrlich, Consultant Orthopaedic Surgeon

21. Professor Ehrlich assessed Mr Brough on behalf of the Commission in December 2012.  He gave evidence and provided a report dated 19 December 2012.[9]

    [9] Exhibit R1 p.184.

22. In the opinion of Professor Ehrlich, Mr Brough has ongoing symptoms consistent with his accepted conditions.  As he could not detect any clinical abnormality in Mr Brough's lower back and Mr Brough did not complain of pain in that area, he concluded that there was no problem with his lower back.

23. Professor Ehrlich said that the existence of a bulging disc was very common in the general population and, unless the disc is pressing on the spinal cord, the condition is not symptomatic.

    Conclusion

24. I am satisfied that Mr Brough suffers from a disc bulge at L5/S1.  In making this finding I have taken into account that Dr Sharma noted this condition when reporting on the CT scan taken on 1 September 2009. 

25. Dr Soon and Dr P. Giblin both support the diagnosis of a bulging disc.  I prefer their opinions to that of Professor Ehrlich as they are consistent with the finding based on the scan.  In contrast Professor Ehrlich was unaware of this finding until he was giving evidence.  Dr M. Giblin reported that he had no history of a disc bulge, but he did not comment on the finding reported by Dr Sharma.  Counsel for the Commission argued that Dr Giblin was referring to a lack of history given by Mr Brough.  It is not clear to me whether this was so as Dr M. Giblin was not called to give evidence.  In any event I consider that his opinion on this issue is of very little weight in view of his reporting that he was unable to comment in respect of the disc bulge without seeing a MRI scan.

    Is a bulging disc in the spine an injury within the meaning of the Act?

26. In subsection 5(1) of the Act injury  is defined as:

    Injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

    (a)a disease; or

    (b)the aggravation of a physical or mental injury.

27. In Health Insurance Commission v Van Reesch [10] the Full Court of the Federal Court considered the definition of injury in the Compensation (Commonwealth Government Employees) Act 1971 (Cth) which read, in part:

    any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury ... [11]

    [10] (1996) 45 ALD 302.

    [11] Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 5(1)

28. The Full Court held that a disc prolapse was a physical injury within the meaning of the Act.  In considering whether the worker could claim her condition as a physical injury rather than a disease, Northrop J. said:

    …to put it more accurately, it is not an autogenous disease upon which Mrs Van Reesch relies.  It may be accepted that her back condition was an autogenous disease but her claim to personal injury is based on the disc prolapse which occurred. There is evidence that the disc prolapse was not an inevitable consequence of the disease.  The rupture, being the prolapse, has been treated.  If there was no rupture there would be no event answering the description of personal injury and Mrs van Reesch would be driven to rely upon the definition of disease and s 20 of the 1971 Act.  But there was such an event and the presence of the disease does not preclude reliance upon that event as personal injury. [12]

    [12] At pp.307-308.

29. It was argued on behalf of the Commission that the finding of a mild disc bulge was not a ‘diagnosable condition”, which I understand to be a contention that there is no injury.  I was referred to the opinion of Dr Graudis, Medical Advisor, Department of Veterans’ Affairs, that:

    The “mild disc bulge L5-S1” noted on the CT scan is a radiographic finding and not a diagnosable condition in itself.[13]

    [13] Exhibit R1 p.112; Respondent’s Statement of Facts, Issues and Contentions para.17

30. The view that there was no diagnosable condition was repeated by Dr Meyerowitz, Medical Advisor to the Department, in a report dated 2 February 2011 which stated:

    Specialist states that there is no evidence of a disc bulge at L5/S1 on imaging that would be attributable to the parachuting injury. Hence there is no diagnosable condition to answer the claim.[14]

    [14] Exhibit R1 p.138.

31. In this application, the question of whether a particular physical condition is an injury is a question which requires an interpretation of the Military Rehabilitation and Compensation Act 2004.  It is not a matter of medical diagnosis. Further, the opinion of Dr Meyerowitz appears to confuse the question of the condition alleged to be suffered by Mr Brough with the cause of that condition.

32. It was recognised by the High Court in Kennedy Cleaning v Ptekoska[15] that an injury simpliciter refers to a “sudden or identifiable physiological change”. The Court referred to the previous decisions of the High Court and Federal Court in support of the proposition that:

    All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial.  If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury" in the primary sense of that word.[16]

    [15] (2000) 200 CLR 286, [33]

    [16] (2000) 200 CLR 286, [39]

33. Putting aside any questions which may arise when a disc bulge is associated with disease of the spine, or an aggravation, it is clear that a disc bulge not associated with either is an injury within the meaning of the Act.  There is no evidence that Mr Brough suffered a disease of the spine at any time. I am satisfied that Mr Brough does have an injury as defined in the Act, being a disc bulge at L5/S1. 

    Issue 2: Is the injury suffered by Mr Brough a service injury within the meaning of the Act?

    Definition of “service injury”

34. Section 27 provides, in part:

    For the purposes of this Act, an injury sustained … by a person is a service injury … if … the injury resulted from an occurrence that happened whilst the person was a member rendering defence service …

35. It is not in dispute that at the time of the parachute accident, Mr Brough was engaged in defence service, and in particular peacetime service in accordance with subsection 6(1) of the Act.  He was not engaged in either warlike or non-warlike service.

    Standard of proof – the reasonable satisfaction of the decision-maker

36. Determinations relating to claims relating to peacetime service are to be made to the reasonable satisfaction of the decision-maker – subsection 335(3). In making its determination, section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), empowers the Tribunal to exercise all of the powers conferred by the MRC Act on the Military Rehabilitation and Compensation Commission.

37. Subsection 339 provides for reasonable satisfaction to be assessed in certain cases by reference to a Statement of Principles.  However, in accordance with subsection 339(4) the section is not applicable in this matter as there has not been a determination of a Statement of Principles in respect of the bulging of the intervertebral disc.[17]

    [17] Statement of Principles No. 40 of 2007 concerns Intervertebral Disc Prolapse.  Bulging of the intervertebral disc is specifically excluded.

    Did the injury result from the parachute incident which occurred on 4 August 2009?

38. On the basis of the evidence of Dr P. Giblin, to which I have already referred, I am reasonably satisfied that the injury suffered by Mr Brough was a result of his hitting the ground in the manner he did when his parachute failed on 4 August 2009.

39. I accept Mr Brough’s evidence that he first hit the ground on his buttocks with his legs raised and his back at an angle of approximately 45 degrees to the ground.  He then fell onto his back.

40. Dr P. Giblin described the physical force which, in his opinion, would have travelled up through Mr Brough’s spine when he landed as “massive.”   In his view, the bulging of the disc was likely to have occurred as a result of this force travelling up the spine and exiting where the fractures occurred.  Dr Giblin referred to Mr Brough not having experienced back pain prior to the incident as “most supportive” of the diagnosis.  I accept Mr Brough’s evidence that he did not suffer from back pain prior to the incident.

1. I have taken into account that the scan carried out on 1 September 2009 showed the disc bulge at L5/S1.  Although the Discharge Summary dated 10 August 2009 reported that plain films of the thoracolumbar spine revealed no further collapse of the vertebral bodies, there is no suggestion that Mr Brough suffered any further injury in the period between the earlier scans and the CT scan on 1 September 2009.

2. I prefer the opinion of Dr P. Giblin to those of Dr M. Giblin and Professor Ehrlich.  Both Dr M. Giblin and Professor Ehrlich were of the view that Mr Brough did not suffer from a bulging disc and consequently neither of them gave detailed consideration to the cause of the injury which I have found does exist. Dr M. Giblin stated that he was unable to comment on Mr Brough’s suffering a disc bulge without seeing an appropriate x-ray.  Professor Ehrlich agreed in evidence that the injury at L5/S1 level was consistent with Mr Brough being involved in the parachute incident.

3. For the reasons above, I am reasonably satisfied that Mr Brough’s condition of a bulging disc at L5/S1 constitutes a service injury for the purposes of the Military Rehabilitation and Compensation Act.

   CONCLUSION

   Application 2011/2905

4. The reviewable decision, being the determination of the Military Rehabilitation and Compensation Commission made 2 June 2011, will be set aside.

5. In substitution for the decision set aside, it will be determined that, in accordance with section 23 of the Military Rehabilitation and Compensation Act 2004 (Cth), liability for the service injury, being a disc bulge at L5/S1 level, sustained by Mr Brough on 4 August 2009, is accepted.

   PART B

   APPLICATION 2013/2070:  CLAIM FOR PERMANENT IMPAIRMENT

   BACKGROUND AND JURISDICTION

6. Mr Brough lodged a Claim for Liability on 9 December 2009.[18]  In the claim form he listed the injuries he was claiming as:

   [18] Exhibit R1 p.92.

   1multiple fractures to lower back;

   2disk [sic] bulging.

   In Part F of the form, he ticked that he was seeking the following benefits if liability to pay compensation was accepted:

   ·permanent impairment compensation (for permanent physical or psychological disability);

   ·incapacity payments (to replace income lost due to incapacity for service or work);

   ·treatment;

   ·rehabilitation.

7. By determination made on 1 December 2010, the Commission accepted liability for the superior endplate fractures to T12 and L1 and fractures to right transverse processes of T8 and T9.   Mr Brough was advised in the determination that “your claim for disc bulging L5/S1 is still under investigation and you will be advised on the outcome of this claim in due course.” [19]

   [19] Exhibit R1 p.116.

8. On 7 February 2011, the Commission determined not to accept liability for the bulging disc condition.[20]  This determination was confirmed on 2 June 2011.[21] Mr Brough lodged an application for the Tribunal to review this decision on 21 July 2011. 

   [20] Exhibit R1 p.141.

   [21] Exhibit R1 p.151.

9. Mr Brough’s Solicitors wrote to the Commission on 18 September 2012, in part as follows:

   We request pursuant to section 68 of the MRCA a permanent impairment assessment be undertaken with respect to our client’s accepted conditions.[22]

   [22] Exhibit R1 p.174.

10. On 17 January 2013, the Commission determined that Mr Brough was not entitled to payment for permanent impairment under section 68 as the impairment suffered did not constitute at least 10 impairment points.

11. By letter of 23 January 2013, Mr Brough’s Solicitors requested a reconsideration of the Commission’s determination.  The Solicitors referred the Commission to the following in support of the request:

    ·Mr Brough continued to experience difficulties in maintaining the level of training required of an active soldier;

    ·his back was “troublesome” if he sat for too long;

    ·standing was uncomfortable;

    ·reference was made to Dr Sharma’s report  which confirmed that there was a minor disc bulge at L5/S1;

    ·Mr Brough was required to perform stretching exercises after getting out of bed;

    ·he experienced difficulty in carrying heavy equipment on his back;

    ·reference was made to Dr Peter Giblin’s report of 21 August 2012 confirming Mr Brough suffered lower back symptoms consistent with the conclusion that there is a soft tissue injury at L5/S1;

    ·Mr Brough’s chief complaint was a constant dull ache in the lower part of the back and the low back symptoms were directly proportional to the period of time that Mr Brough sat or stood.

12. It is to be noted that, although the Solicitors had requested a determination of the permanent impairment relating to the accepted conditions, their letter of 13 January 2013 referred to the bulging disc condition.

13. On 10 April 2013 the Commission confirmed its determination of 17 January 2013.[23]  Mr Brough applied to the Tribunal to review this determination on 8 May 2013. 

    [23] Exhibit R1 p.217.

14. As Mr Brough sought compensation for permanent impairment when he made his initial claim, I am satisfied that the Tribunal has jurisdiction to determine the question of the level of impairment arising from his back condition with reference to his bulging disc at L4/L5.  This is so even though Mr Brough’s Solicitors only requested a determination of the impairment arising from the accepted conditions when they made their request on 23 January 2013.  The important consideration is that the initial claim form included a claim for permanent impairment arising from all of the injuries to his spine.  This was confirmed by the Solicitors in their letter of 23 January 2013.

15. The Commission did not consider the level of impairment including the disc bulge as it determined that there was no liability to pay compensation for that condition.  Nevertheless the claim for permanent impairment arising from all the back conditions was before it.  As the Tribunal stated in Re Fuad and Telstra Corporation Limited [24]:

    It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves the problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.

    [24] (2004) 39 AAR 496, para.[5]; cited with approval in Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33, para [22].

    LEGISLATION

16. Subsection 68(1) of the Act provides::

    Entitlement to compensation for permanent impairment

    (1) The Commonwealth is liable to pay compensation to a person if:

    (a) the Commission has accepted liability for one or more service injuries or diseases (the compensable condition ) of the person; and

    (b) the Commission is satisfied that:

    (i) as a result of the compensable condition, the person has suffered an impairment; and

    (ii) the impairment is likely to continue indefinitely; and

    (iii) the person's compensable condition has stabilised; and

    a claim for compensation in respect of the person has been made under section 319.

    Note 1: The impairment must constitute a minimum number of impairment points for compensation to be payable (see sections 69 and 70). However, the impairment points from more than one service injury or disease can be combined to make up that minimum number.

    ISSUE FOR DETERMINATION

17. The only matter in issue between the parties is the correct impairment rating for Mr Brough’s loss of musculoskeletal function in accordance with Table 3.3.2 of the Guide to Determining Impairment and Compensation (GARP M).

18. The Commission argues that the correct rating is five, for which the criteria is:

    Thoraco-lumbar spine condition causes difficulties in sitting or standing that generally result in pain or undue fatigue by the end of the day.

19. It is argued on behalf of Mr Brough that the applicable ratings are either:

    TEN               Thoraco-lumbar spine condition generally causes pain or undue fatigue within half an hour and so requires frequent changes of posture; [or]

    FIFTEEN        Thoraco-lumbar spine condition generally causes pain or undue fatigue within five minutes, and so requires very frequent changes of posture.

    These criteria are to be read in the context of the preceding criteria which refer to the activities of “sitting or standing or other normal activities.”

20. Other aspects of the calculation of Mr Brough’s combined impairment are set out in the Combined Impairment report dated 17 January 2013.[25] Once I determine the applicable impairment rating under Table 3.3.2, I propose to remit the matter to the Commission to calculate Mr Brough’s entitlement under section 68 of the Act.

    EVIDENCE

    [25] Exhibit R1 p.201

    Mr Brough’s statement 19 August 2014

21. This statement was made to specifically address the extent of the impairment suffered by Mr Brough arising from the condition of his back.

22. After the initial recovery period of six months, Mr Brough continued to experience ongoing pain. He experiences discomfort in his lower back if he stands stationary for more than “a couple of minutes”.

23. At times, as a member of the Australian Defence Forces, he is required to stand absolutely still. He is able to achieve this, but with difficulty and pain. He has adopted techniques which allow him to redistribute his weight slightly to reduce the pain as it increases and spreads across his lower back. If he is required to stand without moving, such as for a parade or a memorial, the discomfort quickly develops into pain within ten minutes. The longer he stands in one position the more intense the pain becomes and is severe within 30 minutes.  If he stands for a period beyond 30 minutes he experiences difficulty in walking and greatly reduced flexibility in his back for the following hour.

24. On getting out of bed in the morning he experiences stiffness in his back and reduced flexibility. He does specific stretching exercises to increase flexibility in his back.

25. Mr Brough experiences discomfort if he remains seated for more than 20 to 30 minutes. If he is able to move or stretch his back in a seated position the discomfort rarely progresses to pain. He does experience a level of pain after prolonged sitting in an aeroplane, even though he is able to move.

    Mr Brough’s oral evidence at the hearing

26. The condition of Mr Brough’s back stabilized approximately three months after the incident.  At about this time he noticed the developing pain in his back after prolonged standing and in the morning.  He completed physiotherapy treatment and pilates in December 2009. After that he engaged in his own personal training regime.

27. Mr Brough was cross-examined at length concerning his medical history since the parachute incident. It was put to him that with the passage of time the seriousness of his condition had become exaggerated in his own mind and that the pain he experiences is not as severe as he described in his statement of 19 August 2014.

28. Mr Brough said that he understated the effect of his back condition during medical examinations as he did not wish to be medically downgraded or discharged from the Army. He said that he endures the discomfort and pain and does not let it affect his work. He manages his back problems with stretching exercises and by keeping physically fit.

    Service Medical Records

29. Mr Brough has been deployed overseas on four occasions, the last of which was spent mainly in the field, including operations on patrol.  On each of these occasions he was found to be fit for deployment.  Following the second of his overseas deployments, on 1 December 2010 Mr Brough was found to be “fit and well” with no current injuries and nil issues whilst deployed.[26]

    [26] Exhibit R1 p.359

30. On 4 February 2014 Mr Brough underwent a comprehensive preventative health examination as part of his employment in the Army.  He certified the correctness of the report of this examination.[27]  In the report Mr Brough recorded that he did not have any persistent muscular pain or weakness.  Later in the report the medical Officer recorded “pain after prolonged standing and sitting – ok with PT and pack carrying.”[28]

    [27] Exhibit R1 pp231-238.

    [28] Exhibit R1 p.237.

    Other reports and documents as to the nature of Mr Brough’s impairment

31. On 30 September 2009 Dr M. Giblin reported that he had seen Mr Brough that day and “he has little in the way of discomfort.”[29]

    [29] Exhibit R1 p.481.

32. Mr Brough’s claim for compensation is dated 2 December 2009. In his claim form he described the signs and symptoms of his injury as “pain and reduced movement – unable to conduct PT and run.”[30]

    [30] Exhibit R1 p.322.

33. On 13 September 2010, Dr Soon, Mr Brough’s General Practitioner, wrote to Dr Giblin seeking advice when he could attempt parachuting again.[31] He stated that that Mr Brough had been well.

    [31] Exhibit R1 p.403.

34. On 20 September 2010 Dr M. Giblin reported to Dr Soon that he had seen Mr Brough that day and that “[h]e has no pain or problems”,[32] and that he saw no problem with his being upgraded to normal duties.

    [32] Exhibit R1 p.379.

35. In a Progress Report prepared by Mr Brough’s case manager on 30 November 2011[33], it was reported that “he was managing pain levels well and it was not an issue at the moment.”

    [33] Exhibit R1 pp.477-8.

36. In clinical records dated 9 December 2013[34] it is noted that:

    ·Fractured par process T7 and T8: 2009: full recovery. Stiffness after prolonged standing

    ·Back pain (Acute or recurrent) - yes – soreness- stiffness.

    [34] Exhibit T1 pp.260-1.

37. On 4 February 2014 Mr Brough underwent a comprehensive preventative health examination by Dr Ao, an Army Medical Officer.  Doctor Ao’s diagnosis of included:

    -     Pain after prolonged standing and sitting

    -     OK with PT/pack carrying.[35]

    [35] Exhibit R1 p.237.

    Evidence of Dr P Giblin

38. Dr Giblin assessed Mr Brough’s impairment as “at least 10”[36]  in accordance with Table 3.3.2.  This assessment was based on the history given by him.  Dr Giblin is of the opinion that Mr Brough downplayed his condition in order to maintain his position in the Army and, by reason of his physical and mental strength, was able to manage his condition well.

    [36] Transcript 16/9/14.

    CONSIDERATION

39. Having listened to and observed Mr Brough give evidence I am satisfied that he was an honest witness who gave his evidence to the best of his recollection.  Although Counsel for the Commission suggested that Mr Brough’s recollection of past events was such that he may not recall the extent of his condition accurately, it was not put that he was deliberately exaggerating the extent of his impairment. I am satisfied that Mr Brough did accurately recall the effect of his injuries.

40. I am satisfied that following the parachute incident, Mr Brough was anxious to return to his full duties in his Unit and did not disclose the full effects of his injuries in order to maintain his position within his Unit.  This accounts for the several medical records and reports which indicate that he was experiencing no difficulties in performing his duties.

41. I accept his evidence of the effects of his back condition as set out in his statement of 19 August 2014,[37] and referred to in paragraphs 65 to 69 of these reasons. On the basis of this evidence I am satisfied that the accepted injuries to his spine, including the disc bulge, generally cause pain within half an hour of prolonged sitting or standing and so require frequent changes of posture.

    [37] Exhibit A1.

42. Consequently, Mr Brough is entitled to an impairment rating of ten for loss of musculoskeletal function in accordance with Table 3.3.2.  This gives an age adjusted impairment rating of 11 in accordance with Table 3.6.1.

    CONCLUSION

    Application 2013/2070

43. The reviewable decision, being the decision of the Military Rehabilitation and Compensation Commission made 10 April 2013, will be set aside.

44. The matter will be remitted to the Commission for reconsideration in accordance with section 68 of the Military Rehabilitation and Compensation Act 2004 (Cth). It will be directed that Mr Brough has an age adjusted impairment rating of 11 under Tables 3.3.2 and 3.6.1 of the Guide to Determining Impairment and Compensation (GARP M).

45. with the direction that the Commonwealth is liable to pay compensation to Mr Brough in accordance with section 68 of the Military Rehabilitation and Compensation Act 2004 (Cth) on the basis that he has an age adjusted impairment rating of 11 in accordance with Tables 3.3.2 and 3.6.1 of the Guide to Determining Impairment and Compensation (GARP M).

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

......................[sgd]..................................................

Associate

Dated 26 November 2014

Date(s) of hearing	16-17 September 2014
Date final submissions received	17 September 2014
Counsel for the Applicant	G Niven
Solicitors for the Applicant	KCI Lawyers
Counsel for the Respondent	B Kelly
Solicitors for the Respondent	Moray & Agnew