CHRISTOPHER BRYANT and MILITARY REHABILITATION AND COMPENSATION COMMISSION - [2009] AATA 825

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 825
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600570

VETERANS' APPEALS DIVISION )

Re CHRISTOPHER BRYANT

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date26 October 2009
PlaceBrisbane

Decision
1. The Tribunal sets aside the decision under review and substitutes a decision that the applicant has a degree of permanent impairment of 10% resulting from his accepted injury of “muscle tension type headaches”.

................[Sgd]..................
Deputy President

CATCHWORDS
COMPENSATION – degree of permanent impairment – headaches occur more than 12 times a year – cause minor interference with activities of daily living – description of 10% impairment in the Guide best describes this level of impairment – decision under review set aside and a decision substituted that the applicant has a degree of impairment of 10%
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 24, 147
Comcare v Emery (1993) 32 ALD 147
Bryant v MRCC [2008] FCA 1424
REASONS FOR DECISION

26 October 2009 Deputy President P E Hack SC

introduction

The applicant, Mr Christopher Bryant, is a senior non-commissioned officer in the Royal Australian Navy. Mr Bryant suffers from persistent headaches. The respondent, the Military Rehabilitation and Compensation Commission, has accepted that the Commonwealth is liable to pay compensation to Mr Bryant in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) for an injury which is described as “muscle-tension type headache”.
The issue in these proceedings is the degree of permanent impairment of Mr Bryant resulting from that injury. Mr Bryant, for whom Mr King-Scott of counsel appeared, says that he suffers from a 10% impairment by reference to Table 13.1 of the Guide to the assessment of the degree of permanent impairment, first edition. The Commission, for whom Mr Clark of counsel appeared, says that the appropriate level is 0% by reference to that table in the Guide.
background
There is little dispute about the facts. Mr Bryant has served in the Navy in excess of two decades. His headaches apparently date back to an incident in 1995. Liability was accepted for the headaches condition in January 2006. In March of that year a delegate of the Commission determined that Mr Bryant’s degree of whole person impairment did not reach 10% and thus no compensation for permanent impairment was payable.
That decision was affirmed on reconsideration on 24 July 2006 and thereafter proceedings were commenced in this Tribunal.[1]
[1] There was an earlier hearing and determination in the Tribunal (see [2007] AATA 1623) but that decision was set aside and the matter remitted for re-hearing by the Federal Court: see [2008] FCA 1424.
the statutory scheme
By a combination of ss 14 and 147 of the Act the Commonwealth is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in, amongst other things, impairment. By virtue of s 24(1) of the Act there is a liability to pay compensation where the injury to the employee “results in a permanent impairment”. It is unnecessary for present purposes to go to the definition of impairment or the concept of permanent as Mr Clark, correctly in my view, accepts that Mr Bryant’s injury satisfies the statutory criterion of permanent impairment.
Other provisions in s 24 of the Act are relevant. They are as follows:
“(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.”
Table 13.1 of the Guide is accepted as appropriate. Given the contest between the parties it is convenient to set out the descriptions of 0%, 10% and 20% levels of impairment. They are as follows:
“%DESCRIPTION OF LEVEL OF IMPAIRMENT
0Attacks may be of any frequency BUT do not interfere with activities of daily living OR are readily reversed by appropriate medication and treatment
10Attacks occur 12 or more times a year AND cause minor interference with activities of daily living OR
Attacks occur less frequently AND cause interference with all activities of daily living other than self care
20Attacks occur up to 25 percent of the time AND cause significant interference with most activities of daily living other than self care.”
The expression “activities of daily living” is dealt with in the Guide in these terms:
“Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
Ability to receive and respond to incoming stimuli
Standing
Moving
Feeding (includes eating but not the preparation of food)
Control of bladder and bowel
Self care (bathing dressing etc)
Sexual function”
the evidence of impairment
There are four sources of evidence of the extent of the interference in Mr Bryant’s activities of daily living from his headaches. First, there is the evidence of Mr Bryant in written form comprising his statement dated 14 June 2006[2] and the statement of 8 April 2009.[3] He verified the contents of these statements in his oral evidence. Then there are the accounts recorded by the various doctors seen by Mr Bryant for the purpose of these proceedings. Additionally Dr Scott Campbell, a neurosurgeon, and Dr Noel Saines, a neurologist, gave evidence before me and the transcript of the evidence of Dr Keith Leithlean, a neurologist, from the earlier hearing was tendered without objection.
[2] Exhibit 1, pp 93-95
[3] Exhibit 2.
At the outset I should observe that I do not regard myself bound in any way by the opinions of the medical practitioners about the percentage of impairment. My task, as I apprehend it to be, is to determine how, and the extent to which, Mr Bryant’s headaches impair him in the activities of daily living and then determine which of the descriptions in the Guide best describes that level of impairment.
Next, the proper approach to the task means that there is no requirement that all, or most, or any particular one, of the activities of daily living have been interfered with.[4] And interference with activities of daily living will be minor “if it is small in size, extent or importance”.[5]
[4] Comcare v Emery (1993) 32 ALD 147, 151.
[5] Bryant v MRCC [2008] FCA 1424 at 54.
In the evidence that he has given and in the accounts given to medical practitioners Mr Bryant has been quite consistent in describing the frequency of his headaches. He is affected virtually daily but frequently (and certainly 12 or more times per year) the intensity will increase markedly. These more severe occasions are rated by Mr Bryant variously as 2 to 3 on a scale of 1 to 5[6] or 7 on a scale of 1 to 10.[7]
[6] See eg Exhibit 2.
[7] See eg Exhibit 3.
There is no doubt, and Mr Clark accepted, that the descriptions given by Mr Bryant in his statements and in his evidence would satisfy the description of “attacks … which cause minor interference with activities of daily living”. But the Commission submitted that I ought not accept that Mr Bryant’s evidence was reliable when regard was had particularly to the account given by Mr Bryant to Dr Saines and to Mr Bryant’s Navy medical examination in July 2007.
The Commission’s reliance on the Navy medical examination may be readily dealt with. In what appears to be that part of the document which the member was required to complete Mr Bryant has referred to recurring headaches associated with neck pain in answer to the question, ”Do you suffer migraines or severe headaches?” However the overall assessment of Mr Bryant’s health was that in July 2007 he was medically fit for employment in a deployed or seagoing environment without restriction. But I do not regard that conclusion as inconsistent with the notion that Mr Bryant’s headaches are such as cause him minor interference with activities of daily living. Mr Bryant suffers from frequent headaches and has suffered for a long period of time. He has, as he said in his evidence, developed strategies to cope with the more severe headaches. They are, however, not so severe as to interfere with his fitness for employment. That seems to me to be speak of a much greater degree of impairment that the 10% description of “minor interference with activities of daily living”.
In his report of 30 October 2008 Dr Saines reported Mr Bryant as saying:
“He mentions being lethargic with reduced short term recall (for names etc) and needs to make notes. His sex drive is reduced.
…
Mr Bryant experiences this headache on an almost daily basis now. It frustrates him but does not interfere significantly with his work or other activities. He takes a regular amount of simple analgesic.
…
In essence, Mr Bryant suffers pain, frustration and occasional interruption of his activities as a result of the headache but has no significant permanent impairment (according to Table 13.1).”
In a subsequent report Dr Saines expressed the opinion that Mr Bryant’s level of impairment with reference to Table 13.1 was 0%.
Additionally Mr Clark was minded to suggest that I ought give greater weight to the opinion of a neurologist (such as Dr Saines) over that of a neurosurgeon (such as Dr Campbell). That distinction may be valid in some cases; this is not one of them. I need not rely on any medical opinions expressed by either type of specialist. The question rather is whether the histories taken from Mr Bryant and recorded by the doctors were full and accurate.
In my view the relevant history of complaints taken by Dr Saines was not as complete as it might have been. The fault is, in the main part, that of Mr Bryant. My impression of him was that he was somewhat taciturn and appeared somewhat reluctant (or unable) to fully articulate the effects on him of the almost constant headaches. Moreover his consultation with Dr Saines was quite brief and lasted between 15-20 minutes. Dr Saines had access to Mr Bryant’s written statement of June 2006 but he appears not to have paid any particular regard to it.
I certainly did not have the impression that Mr Bryant was exaggerating his difficulties and I did not understand Mr Clark to suggest that to be so. I accept what he details as the limitations placed on him by the frequent, more severe, headaches. Given what I perceive to be Mr Bryant’s reluctance (or inability) to fully detail his complaints in a formal setting, it is my view that I ought treat his written statements as being a more accurate guide to the extent of interference with Mr Bryant’s activities of daily living than the somewhat stilted account recorded by Dr Saines. The matters described by Mr Bryant detail interference with the ability to receive and respond to incoming stimuli and with sexual function. There is undoubtedly interference with activities of daily living. So much seems to be accepted by Dr Saines who said:
“[The headache] frustrates him but does not interfere significantly with his work or other activities.” [emphasis added]
There is, then, a level of interference which is not great but which certainly answers the description of “minor”.
I am then satisfied that Mr Bryant’s headaches, which are conceded to amount to a permanent impairment, occur 12 or more times a year and cause minor interference with his activities of daily living. The result is that I would set aside the decision under review and substitute a decision that Mr Bryant has a degree of permanent impairment of 10% resulting from his accepted condition of “muscle tension type headaches”.
I invite the parties to make submissions on costs. They should liaise with my Associate to determine whether that can be done most conveniently in writing or by a short telephone hearing. I assume that the costs of the first hearing will need to be dealt with and invite submissions on those costs as well.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         ......................[Sgd].................................
  Associate
Date of Hearing  12 October 2009
Date of Decision  26 October 2009
Counsel for the Applicant          Mr RF King-Scott
Solicitors for the Applicant        Slater & Gordon
Counsel for the Respondent     Mr CJ Clark
Solicitors for the Respondent    DLA Phillips Fox