Cassidy and Comcare

[2004] AATA 518

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 518

ADMINISTRATIVE APPEALS TRIBUNAL)

) No Q2001/886,Q2002/553

GENERAL ADMINISTRATIVE  DIVISION  )
Re		DALE CASSIDY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member McCabe

Date24 May 2004  

PlaceBrisbane

Decision

The Tribunal sets aside the respondent’s decision to deny liability in relation to the applicant’s right hip. In substitution the Tribunal decides the respondent is liable to compensate the applicant pursuant to s14 and s16 of the Safety, Rehabilitation and Compensation Act 1988.

The Tribunal affirms the respondent’s decision in relation to the applicant’s left hip.

..................Sgd.........................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – entitlement – congenital hip defect – whether aggravation arose out of or occurred in the course of employment – decision set aside

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

24 May 2004

Senior Member McCabe    

Introduction

1.      Dale Cassidy was an army reservist from 17 November 1991 to 17 August 1992.  He says he suffered injuries to both his hips during this time.  He has asked the Tribunal to review Comcare’s decision to deny liability in respect of his left and right hip conditions. 

Introduction - Left Hip (Q2001/886)

2.      The applicant suffered an injury to his left hip, for which Comcare accepted liability on 3 May 1994.  Liability was ceased from 22 April 1994.  In 2001 the applicant applied for a reconsideration of the decision to cease liability.  Though this request was well out of time the respondent decided to extend the time within which to request a reconsideration.  In July 2001 the respondent affirmed the decision of 3 May 1994 (exhibit 1: f58 T22).

Introduction - Right hip (Q2002/553)

3.      The applicant also says he suffered pain in his right hip.  It is commonly accepted the applicant’s condition is congenital.  Comcare says as it is congenital it would have arisen in any event. The applicant disagrees, and says his condition became symptomatic as a result of his training while enlisted in the army.

4. Mr Cassidy now seeks compensation for his injuries under s14 of the Safety, Rehabilitation and Compensation Act 1988. He also seeks compensation for medical expenses under s16. He seeks review of two of Comcare’s determinations: the determination dated 17 July 2001 to deny liability for his left hip injury, and the determination dated 17 June 2002 to deny liability for his right hip injury.

5. For reasons I will explain below, I have decided to set aside Comcare’s decision in relation to his right hip, but affirm Comcare’s decision in relation to his left hip. Mr Cassidy is entitled to compensation under ss14 and 16 for his right hip condition.

The material before the Tribunal

6. The hearing focused on the applicant’s right hip. He has also made a claim in respect of his left hip. The “T documents” (compiled pursuant to s37 of the Administrative Appeals Tribunal Act 1975) for both claims were tendered at the hearing. The T documents included medical reports from Dr Searle and Dr Boys. The Tribunal was also provided with an additional medical report of Dr Boys dated 7 November 2002.

7.      The applicant was represented by Mr Anforth of counsel. Ms Ford of counsel represented Comcare.

The facts

8.      The applicant was born on 5 August 1968. He enlisted in the army on 17 November 1991 and was discharged on 17 August 1992 because he did not meet the army’s medical standards.

9.      The applicant completed three months of basic training at Kapooka before being posted to the School of Infantry at Singleton. Training at Singleton was more intense and arduous than the training at Kapooka. He says he began to experience pain in his left hip soon after his training commenced. He said in his oral evidence that the pain was centred in his left hip, but he also said his right hip was numb. He sought treatment from army doctors and was prescribed anti-inflammatory medication. Investigations by the army medical personnel and an orthopaedic surgeon revealed the applicant suffered from a stress fracture in his left hip. He was placed on restricted duties. There is no note in the contemporaneous army medical records of the applicant complaining about his right hip. The applicant’s right hip was not x-rayed at this point.

10.     Mr Cassidy had a bone scan taken of his right and left hips in June 1992. The scan did not reveal any problems with the left hip, but it revealed the applicant suffered from a dysplastic right hip. The medical personnel who were treating the applicant were apparently surprised at this conclusion. That surprise was apparent in the medical records where the note about the findings was accompanied by exclamation marks and a recommendation that the applicant not be permitted to become a foot soldier (exhibit 1: f18 T4).

11.     The applicant was discharged from the army. At his final medical board examination, the doctors noted the applicant had not been complaining of pain in his right hip while in the army. They noted all the complaints had related to the left hip (exhibit 1: f24 T4).

12.     Mr Cassidy continued to use anti-inflammatory medication for about a month after his discharge. After his left hip began to improve, he ceased using the medication and – he says – almost immediately noticed pain in his right hip. Previously, he says his right hip had been numb; now it was painful. He did not consult a doctor about the pain until a year later.

13.     In cross-examination, counsel for the respondent suggested to Mr Cassidy that the symptoms in his right hip did not emerge until some time after he left the army. Mr Cassidy insisted they emerged as soon as he stopped taking anti-inflammatory medication. I accept the applicant is a witness of truth. He gave his evidence in a forthright manner. He was not always certain of dates and there were some minor inconsistencies in his evidence, but that is unsurprising given the matters in question occurred 12 years ago. I accept his account.

14.     The applicant says the painful condition in his right hip continues to this day. He is forced to take anti-inflammatory medication on at least one or two days most weeks. He says the pain often arises because he jars his hip. For the most part, he uses an over-the-counter preparation like Nurofen, but occasionally he obtains a prescription for Voltaren. He says he does no exercise apart from the occasional swim and some push-ups. He works full time although that is only possible because his occupation does not require him to move around a great deal. I am satisfied in the circumstances that his right hip condition is permanent and affects his ability to work.

The medical evidence: what the doctors said

15.     Dysplatic hips are a congenital condition. The doctors all agree on the diagnosis. There is no suggestion the underlying condition was caused by the applicant’s service in the army. Mr Anforth says the condition was aggravated by his service in that the underlying condition became symptomatic in circumstances where it might not otherwise emerge.

(a)Dr Searle

16.     Dr Searle is an orthopaedic surgeon. He was called to give evidence by the applicant, and his reports were tendered in evidence. Dr Searle noted in his report of 16 December 2001 the applicant suffered from a dysplastic right hip. The doctor said it might not have become symptomatic until much later in life, or at all, but for the applicant’s rigorous exercise regime in the army. He said the condition was permanent and would gradually get worse. He repeated the essence of these conclusions in his report of 5 January 2002 (exhibit 2: f48 T11) and in his oral evidence.

17.     Dr Searle was asked to account for the fact the symptoms in the right hip did not emerge until after the applicant left the army. (Recall the applicant says the symptoms emerged as soon as he stopped taking the anti-inflammatory medication about a month after discharge.) He said the anti-inflammatory medication the applicant was taking for the left hip may have masked the pain in the right hip. He said the timing of the emergence of the symptoms and the absence of any other potential source of aggravation apart from army training led him to conclude that army service was more than likely the cause of the condition becoming symptomatic when it did.

(b)Dr Boys

18.     Dr Boys is also an orthopaedic surgeon. He wrote a report for the respondent and gave evidence at the hearing. Dr Boys says the condition is developmental in nature – one is born with a dysplastic joint – and it was bound to emerge at some point. He said it was not unheard of for the condition to become symptomatic in someone Mr Cassidy’s age. He denied there was any scientific proof that stresses like those endured by Mr Cassidy could cause symptoms to emerge. He noted in particular that the bone scan in June 1992 did not show any signs of “osseous or joint pathology within the articulation of the right hip which might be attributed to military service.” He also noted the army medical records did not disclose any problems with the right hip: they all focussed on the left hip.

19.     Dr Boys agreed anti-inflammatory medication could mask the symptoms in the right hip at the time of the applicant’s discharge even though he continued to experience difficulties with his left hip.

Conclusions from the medical evidence – Right Hip

20.     It is always a difficult task to reconcile the conflicting opinions of two medical experts. In this case, I prefer the evidence of Dr Searle in relation to the right hip. I do so because I have already accepted Mr Cassidy’s claim as a matter of fact that he began to experience pain in his right hip as soon as he stopped taking anti-inflammatory medication. The masking effect of the anti-inflammatory medication explains the absence of references in the applicant’s medical records to symptoms. I note Dr Boys’s conclusions from the bone scan, but those results were also before Dr Searle and he was untroubled by them.

21. I accept there is no scientific evidence that arduous physical activity can trigger symptoms in a dysplatic hip, but I also accept Dr Searle’s view that the training in the army was the most likely trigger of the symptoms. I am satisfied (in relation to his right hip) the applicant has made out his claim that his right hip was injured within the meaning of s14 of the Act. I note the definition of injury in s4 includes aggravation of a physical condition if that aggravation arose out of or occurred in the course of employment. That is what happened here. That injury has resulted in an impairment. The respondent is also liable to compensate the applicant for medical expenses under s16.

Conclusions from Medical Evidence - Left Hip

22.     The left hip condition was not the focus of the hearing.  The applicant did not raise evidence beyond the material already filed with the Tribunal to support the claim.  I have had regard to all the evidence before me.  In particular I note the report of Dr Boys dated 22 April 1994 (exhibit 1: f43-46 T13).  It says

It is reasonable to believe that the condition resolved through the normal processes of bone and soft tissue healing over a 6 month period following onset of symptoms.

23.     This report is supported by Dr Boys’ more recent report of 7 November 2002 (exhibit 3).  It says

The material available to me would suggest that Mr Cassidy did suffer a stress response of the left femur in the course of service-related training activities in May of 1992.  This was a temporary condition resolving, on his description, over a period of some seven to eight months thereafter without residual disability or impairment.

24.     Based on these reports I think the decision of the respondent to cease liability for the applicant’s left hip injury was the correct and preferable one.  Accordingly that decision is affirmed.

Conclusion

25. Comcare’s decision in relation to his right hip is set aside. Comcare is liable to compensate the applicant pursuant to s14 and s16 of the Safety, Rehabilitation and Compensation Act 1988.  The decision in relation to his left hip is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         .....................................................................................
  Associate: Thomas Ritchie

Date/s of Hearing: 13 May 2004
Date of Decision: 24 May 2004
The applicant was represented by Mr Harris and Mr Anforth of counsel
The respondent was represented by Ms Fitzpatrick and Ms Ford of counsel