Cohen and Military Rehabilitation and Compensation Commission

[2006] AATA 933

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 933

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/677

VETERANS' APPEALS  DIVISION		)
Re		DAVID COHEN

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P McDermott
Dr GJ Maynard, Member

Date2 November 2006  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

P McDermott

Senior Member

CATCHWORDS

COMPENSATION – service with the Royal Australian Navy – Guide to the Assessment of Degree of Permanent Impairment Table 2.1 and Table 13.1 – degree of permanent impairment – accepted condition of right lower lung pneumonia – claim of permanent impairment as a result of thoracotomy, empyema and pleurodesis – relevant table to be applied – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 24, 27

Allen and Comcare [2000] AATA 152

Re Ileris and Comcare (1999) 56 ALD 301; (1999) 30 AAR 98

Whittaker v Comcare (1998) 86 FCR 532; (1998) 28 AAR 55

Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay (1992) 38 FCR 181; (1992) 28 ALD 311; (1992) 16 AAR 241

REASONS FOR DECISION

2 November 2006  

P McDermott, Senior Member

Dr GJ Maynard, Member   

Introduction

1.      In 1990 Mr David Joseph Cohen contracted pneumonia while serving with the Royal Australian Navy. This illness resulted in the complication of empyema, as a result of which he underwent a thoracotomy and pleurodesis operation. The thoracotomy, empyema and pleurodesis are accepted sequelae conditions to his having contracted pneumonia.

2.      We have to decide whether Mr Cohen is entitled to be paid compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act). The entitlement of Mr Cohen to be paid compensation under the Act is dependant upon whether there is evidence that he has more than a minor permanent impairment as a result of these accepted sequelae conditions.

Background

3.      Mr Cohen was born on 17 January 1965. He enlisted with the Royal Australian Navy on 19 July 1987 and was discharged at his own request with the rank of sergeant on 19 July 1993.

4.      In 1990 Mr Cohen was on active service with the Royal Australian Navy. He was then serving on HMAS Tobruk which was on the Red Sea as part of the Anzac Day commemoration service at Gallipoli.

5.      On 6 May 1990 it was apparent that Mr Cohen was then seriously ill with right lower lobe pneumonia following a febrile illness. He was initially hospitalised in Saudi Arabia and then transported to Australia.

6.      By June 1990 Mr Cohen developed empyema which required the drainage of the empyema following a thoracotomy and pleurodesis operation.

7.      Mr Cohen’s service medical records document that he was upgraded to a medical category “six” in July 1990.  A medical board on 8 November 1990 upgraded him to medical category “class one” with the qualification that he would be permanently unfit for submarine, diving and aircrew duties.

Determinations

8.      On 10 January 1992 Mr Cohen lodged a claim for compensation for his right lower lung pneumonia condition which occurred on 6 May 1990 whilst on deployment.  His solicitors, in a letter of 18 March 1993, initially relied on the fact that he was granted a 30% pension by the Department of Veterans Affairs.  On 13 September 1994 the Administrative Appeals Tribunal, by consent, decided that the Department of Defence accepts that the pneumonia was aggravated by employment with the respondent.

9.      On 19 March 2004 Mr Cohen lodged a further claim for compensation for thoracotomy, empyema and pleurodesis as sequelae conditions to his right lower lung pneumonia condition.

10.     On 1 April 2004 the delegate of the Military Compensation and Rehabilitation Service issued a determination under the Safety, Rehabilitation and Compensation Act1988 and determined that liability be extended to include thoracotomy, pleurodesis and empyema as sequelae to his right lower lung pneumonia condition.

11.     On 19 April 2004 Mr Cohen completed a benefit election form claiming permanent impairment in relation to these accepted conditions.

12.     On 27 May 2004 the delegate of the Military Compensation and Rehabilitation Service issued a determination that no payment can be made under sections 24 and 27 of the Act in relation to the thoracotomy, pleurodesis and empyema conditions.

13.     On 21 June 2004 Mr Cohen requested a reconsideration of this determination.

Reviewable Decision

14.     On 29 July 2004 the Manager Reconsiderations of the Military Compensation and Rehabilitation Service affirmed the determination of the delegate [exhibit 1, T1 folio 3]. Mr Cohen has applied for a review of that decision from this Tribunal.

Issues For Determination

15.     We have to determine whether Mr Cohen has any permanent impairment as a result of the accepted sequelae conditions of thoracotomy, empyema and pleurodesis; and, if so, which table of the 1989 “Guide to the Assessment of Degree of Permanent Impairment” (Comcare Guide) is applicable, and what is the degree of that permanent impairment.

History of the matter

16.     Mr Cohen, in his evidence stated that he was currently a real estate agent and professional renovator.

17.     Mr Cohen stated that he completed his real estate studies in May 2003 and thereafter commenced his duties as a real estate agent. Prior to then he was a storeman.

18.     Mr Cohen also renovates homes. He stated that this involved “buying houses that need make-overs and then re-selling them”. He stated that this renovation work “compensates my work for real estate if the market is quieter and I like generally working for myself”. Mr Cohen is now renovating his third home.

19.     Mr Cohen showed us the scars from his thoracotomy operation.  He mentioned that it took a month for his scars to heal after his operation. He showed us two smaller scars where the two tubes that drain the lung were inserted.

20.     Mr Cohen also described what occurred during his pleurodesis operation whereby talcum powder was inserted into his rib cage. He stated “that’s what the dull pain is and the numbness”.

21.     Mr Cohen in his evidence stated that the symptoms that arose from his accepted conditions were fatigue, a numbing sensation and a stitch-like pain. Mr Cohen has also complained of shortness of breath.

22.      Mr Cohen stated that his dull pain and numbness condition starts from the back of the rib cage, is on the bottom of the rib cage and along the bottom two ribs. Mr Cohen stated that the pain is dull in the front and very sensitive in the back. He described the pain as “a continual pain, a continual ache, and it’s just like someone grabbing you”. He said: “It’s like your lung being stuck to the inside of your rib cage, because that’s exactly what it is”. Mr Cohen said that he had that pain whilst giving evidence in these proceedings.

23.     Another complaint of pain that is mentioned in the statements of Mr Cohen is a stitch-like pain. Mr Cohen stated that the source of that pain is at the back where his scar is. He mentioned that the stitch generates from where there are “a few little nodules under the skin that a specialist can feel and you can see them if you really push it”. From there, Mr Cohen said that the stitch is “from the back right through to the front” of his torso.

24.      Mr Cohen stated that his numbness condition is experienced by fatigue. He stated: “When I get tired, it feels like a heavier numbness on that side, and it’s brought on by fatigue".

25.     Mr Cohen stated that the stitch-like pain is “more from aerobic activity”. He mentioned a brisk walk and climbing stairs as activities that would bring on the stitch-like pain. Mr Cohen discussed how the brisk walk would bring on pain, stating that as a real estate agent he has to distribute “letter box information”. He said “if I’m walking too fast, I have to pull up, or I’ve had to give it away and have Melissa [his wife] do it for me”.

26.     Mr Cohen has also made complaints of being short of breath upon physical exertion such as brisk walking, walking up a flight of stairs, light carpentry, swimming, pushing a wheelbarrow and digging [exhibit 1, T40, folio 185, [21]-[27]]. He also has stated: “If I attempt to breathe more than the average breath I find that I become very short of breath because my lung is limited by the adhesion, the lack of muscle toning, nerve endings and entrapment” [exhibit 1, T40, folio 185, [20]].

27.     Mr Cohen also stated that the stitch-like pain condition limited the number of open houses that he could have. On a Saturday he is expected to conduct open houses. He said: “it’s hard for me to do more than four” properties. If he was to commence an “open” at 10am, he stated that “by 2.30 [pm] I’m – I’ve had it”.

28.     Mr Cohen mentioned, by way of comparison, that the principal of his real estate agency, who is ten years older than him, can do “six or seven” open house properties in a day. Other agents in his office would also do six or seven open houses in a day. 

29.     Mr Cohen stated that the stitch-like pain would also occur during heavy gardening and landscaping. He said that if he works “too hard or too heavy, I get pulled up with a stitch”.

30.     As a home renovator Mr Cohen stated that he does “basic gardening”. He does “painting, gardening, fencing [and] driveways”. He said: “when I’ve got to dig out old plants and refresh a yard, that’s when I find it the most – with a short period of time with a pick and a shovel, I lose my breath and that stitch comes back again”.

31.     Mr Cohen mentioned that when he gets the stitch he has cried. He said: “I’ve sat down in agony several times, especially during summer, that’s really got me, and I’ve panicked”.

32.     Mr Cohen stated that he experienced the stitch-like pain when he was sawing timber to fence his renovated homes. He said: “I’m right handed and it [i.e., the stitch] happens to be on my right-hand side, and if I start sawing too thick a timber or much of it, it  will happen”.

33.     Mr Cohen stated that the stitch-like pain caused difficulties with relations with his wife. He also said: “During sex with my wife it’s been known to occur”. Mrs Cohen also gave evidence of difficulties with sexual relations.

34.      Mr Cohen also mentioned that he experienced the stitch-like pain while playing with his children. He stated that he gets the pain while playing soccer with his son. He also stated that he has the pain while going down the slides in a water amusement park.

35.     Mr Cohen mentioned that he was an active footballer in his youth.

36.     Mr Cohen said that he has experienced the stitch-like pain in his sleep such as where he has slept on the wrong angle. He has on a number of occasions sought advice from hospitals during these panic attacks. He told Dr Spain that he thought that he was having a heart attack on one occasion. He has been advised that if he panicked he would “make it worse”. On occasions when he wakes, his wife has massaged his back while he gets his breath back.

37.     Mr Cohen also gave evidence of how he has been advised by Dr Walden that he found the nodule, where there is a nerve ending, and that it could be treated by an operation.

38.     Mr Cohen said that Dr Walden has advised him that there are risks with an operation to an area to the right of his spine. Mr Cohen said that he was advised by Dr Walden that the operation would take “about a few hours” and that it was “a dangerous one” and that “it’s only good for 10 years”.

39.     Mr Cohen has chosen not to have the operation.   He stated that he was “not going to risk tampering with his spinal cord” to get a result that would be guaranteed for 10 years.

40.     Mr Cohen has also chosen not to take any drugs on a daily basis to relieve the pain as he is an alcoholic.  During the hearing, Mr Cohen gave evidence that he did not take any prescribed medication for the pain and other than attending the hospital on a number of occasions, he did not receive medical treatment for the stitch-like pain. He indicated that he had learnt how to live with the disability.

41.     Mr Cohen’s wife, Melissa May Cohen, also gave evidence in these proceedings. She gave evidence that she has observed him on many occasions in obvious pain and with shortness of breath. She also mentioned when her husband woke in obvious distress she tries to reposition him and massage the area where he is in pain. 

42.     Mrs Cohen said that the gardening activities that bring on pain are “more of a heavy duty gardening” and “the heavy digging and removal of heavy trees and things like that”.

43.     Mrs Cohen in her statement also remarked that her husband has difficulty “walking any distance”. In her evidence she stated: “Sometimes with his work we do letter box drops, and particularly in hilly areas we’ve got to do that, and this strenuous activity brings on the pain. It seems to hinder him so he has to stop and can’t go on”.

44.     On such occasions Mrs Cohen stated that Mr Cohen will “try to sit somewhere for a few moments. Then when he’s able to, he’ll go back to his car and he’ll go home and rest where – and I’ll probably continue on with the task”.

45.     In cross-examination Mrs Cohen stated that she was aware that her husband has an anxiety condition. She acknowledged that the anxiety situation causes him to be worried at times. She said: “When he’s been stressed and worrying for a while, it does tend to take a lot out of him, yes”.

46.     Mrs Cohen discussed the fact that at times her husband tends to panic. She said: “I suppose it’s more anxiety, anxiety and panic though – I don’t see much difference there”.  Mrs Cohen stated that her husband would be comforted by breathing exercises.

Medical Evidence

47.     Professor David McEvoy, a consultant respiratory physician, gave evidence. Professor McEvoy had examined Mr Cohen in 2003 and 2004. His reports were received in evidence [exhibit R1 and R2]. At the time of the 2004 interview Professor McEvoy reported that Mr Cohen had  been employed as a real estate salesperson “for two years and describes his employment as successful”.

48.     Professor McEvoy performed ventilatory function tests on both occasions.  He assessed that Mr Cohen’s ventilatory function to be within the expected range for a male of his age and height. He assessed that Mr Cohen had a 0% impairment rating on Table 2.1 of the Guide.

49.     We observe that Mr Harding very competently cross examined Professor McEvoy and revealed some shortcomings in matters of detail, but he did not refute the substance of the objective tests of ventilatory capacity.

50.     Professor McEvoy had also reported on the pain experienced by Mr Cohen.

51.      Professor McEvoy reported in August 2003 that “His only respiratory symptom is a discomfort in the right lower zone of his chest. This is a catching pain somewhat like a stitch related to lying on his right side. When he is tired he has a dull aching discomfort in the posterior aspect of the right lower costal margin. This symptom occurs once every several weeks and disappears with rest. He has not required any treatment” [exhibit R1, folio 2].

52.     Professor McEvoy reported in July 2004 that “David complains of a constant symptom described as an annoying discomfort at the right lower costal margin anteriorly, felt like pressure from overlying fingers. He is not aware of this during sleep or when preoccupied. In this area he has an aching discomfort when he is tired. This occurs infrequently, less than monthly” [exhibit R2, folio 1].

53.     Professor McEvoy also reported in July 2004 that Mr Cohen “also complains of a pain like a stitch, felt in the right lower costal margin posteriorly on vigorous exertion such as digging a hole or during prolonged walking.  The pain is eased by cessation of exercise and does not require medication for relief” [exhibit R2, folio 1].

54.     This pain did not seem to be recorded as associated with respiratory function.

55.     Professor McEvoy also reported that Mr Cohen showed considerable anxiety about the long term consequences of his treated empyema.  However, in his July 2004 report he stated “I have reassured him that it is extremely unlikely that there will be any symptoms or complications in the future in relation to this injury or illness, but continued smoking is likely to have adverse effects” [exhibit R2, folio 2].

56.     There is no mention in Professor McEvoy’s reports of Mr Cohen’s claim that he gets shortness of breath when he tries to take a deep breath. We consider that it would be most unusual for a respiratory physician of the standing of Professor McEvoy not to record such a symptom if it had been reported to him.

57.     We also mention that the symptom of shortness of breath is not recorded in Dr Spain’s report [exhibit 1, T26 folio 137-146] although it is mentioned in Mr Cohen’s statement of 13 November 2003 [exhibit A8, folio 20].

58.     One matter that Professor McEvoy reported on was that the lung function test in 2003 did not show any significant change with the inhaled bronchodilator. That would indicate that it is unlikely that some reversible mechanism is responsible for the reported shortness of breath of Mr Cohen.

59.     We have considered a report dated 5 May 2003 from Dr David Spain, consultant emergency physician [exhibit 1, T26].

60.     In that report Dr Spain stated that Mr Cohen’s “symptoms relating to his previous surgery are minimal in my opinion. They certainly do not suggest major impairment”. Dr Spain also stated that “in summary he has made a good recovery and is not significantly impaired” [exhibit1, T26, folio 143].

61.     Dr Spain in his report also expressed the opinion that there is a 0% loss of ventilatory function as a percentage of whole person impairment [exhibit 1, T26, 143].  Dr Spain had arranged for repeat spirometry.

62.     Dr Spain considered that the condition of Mr Cohen was “unlikely to deteriorate at this late stage from his previous pneumonia or empyema. If he continues to smoke cigarettes he may develop problems of chronic airways limitation or emphysema” [exhibit 1, T26, folio 144].  Dr Spain did state that Mr Cohen has some minimal symptoms suggesting a permanent impairment but stated “it is so minimal that it is difficult to provide a significant rating” [exhibit 1, T26, folio 144]. It was on this basis that Dr Spain assessed a rating of 0% on Table 2.1.

63.     Dr Spain in his report of 5 May 2003 mentions that Mr Cohen “is able to do most activities of daily living without any restrictions. He is able to drive, cook, vacuum, hang out the washing and do the shopping and gardening without any significant difficulty. He avoids heavy digging however and also when he goes walking with his girlfriend he becomes sweaty but is not obviously short of breath” [exhibit 1, folio 137].

64.     Dr Spain also records that Mr Cohen was unemployed when he interviewed him as he wished to avoid drinking alcohol. He had, however, been recently employed as a storeman.  His work as a storeman was mentioned in the report: “This position involved activities such as unloading light boxes, walking up stairs and clerical work. There were two flights of stairs that he walked up and down three to four times per day and he felt that this was tiring but did not cause shortness of breath”.

65.     A report from Dr J F R Love dated 5 April 2005, which was commissioned by Mr Cohen’s solicitors, was placed in evidence [exhibit A1]. 

66.     Dr Love refers to the fact that there is an excessive growth at the point where the nerve was divided for the thoracotomy.  He stated that this tender spot may represent what is referred to as a traumatic neuroma and offers a mechanism for the continual localised tenderness. Dr Love is of the opinion that Mr Cohen has developed a particular type of chronic pain response and his incapacity is not a simple physical state. Dr Love reports that Mr Cohen’s symptoms are not related to the pleurodesis.

67.     A report of Dr Marc Walden, Pain Medicine Physician, dated 4 July 2005 was admitted into evidence [exhibit A13]. In that report Dr Walden mentioned that there could be a neuroma at the cut end of the intercostal nerve, which could be the cause of Mr Cohen’s difficulties. Dr Walden also mentioned the anxiety suffered by Mr Cohen.

68.     Dr Walden in his report also stated that Mr Cohen was “independent in all aspects of self-care and domestic activity but states that heavy manual work such as some aspects of gardening is now difficult because of his diminished respiratory capacity”. We point out that in making these remarks Dr Walden was reporting the comments of Mr Cohen. Dr Walden was certainly not making an assessment of respiratory impairment as he mentioned that the assessment of respiratory impairment was outside the area of his particular expertise.

69.     Dr Walden’s report of 18 October 2005 was admitted into evidence [exhibit A2].  Dr Walden did not give any impairment ratings in that report. Dr Walden, however, expressed the opinion that the preferable diagnosis for the condition identified by Dr Love was intercostal neuralgia.

70.     Dr Walden in his report dated 15 May 2006 stated that he would give Mr Cohen a 10% impairment rating if he was assessed under Table 13.1 [exhibit A4]. However, in that report he also stated that he believed that Mr Cohen was not assessable under Table 13.1 because Mr Cohen’s condition of permanent nerve damage was not an intermittent condition. However, after Dr Walden gave his report he considered the case of Allen and Comcare [2000] AATA 152 and stated that he would give now assess Mr Cohen as having a 10% assessment.

71.     In his report Dr Walden expressed the opinion that there would be “pain arising from damage from the intercostal nerve”.

72.     We have already mentioned that Mr Cohen stated in his evidence that Dr Walden advised him that the treatment for the cut nerve would be a long and dangerous procedure. Dr Walden did not discuss this possibility of treatment in his report. However, in his evidence Dr Walden gave a different perspective on the extent of the treatment: see paragraph 98 of these reasons. However, it is not for us to question why a patient may accept or refuse treatment.

Findings of Tribunal

73.     We point out that “the fundamental obligation of the Tribunal is to base its decision on evidence which has such degree of probative value as is appropriate having regard to the nature of the decision”: see ReIleris and Comcare (1999) 56 ALD 301 at 310; (1999) 30 AAR 98 at 121.

74.     In deciding this matter we have reviewed all of the medical evidence in this application.

75.     It is in the respiratory system that the initial illness and the complications of that illness and its treatment occurred in this applicant.

76.     We are satisfied that Table 2.1 of the Comcare Guide is the appropriate Table to assess the ventilatory function of the respiratory system.

77.     Mr Cohen has had the benefit of having his respiratory system assessed by both Professor McEvoy and Dr Spain.

78.     We accept the evidence of Professor McEvoy and Dr Spain that Mr Cohen should be assessed as having a zero percent impairment rating on Table 2.1 of the Guide. The opinions of these specialists were based on testing.

79.     Whilst there was some minimal loss of lung functioning, we adopt the views of Dr Spain that this is a consequence of his cigarette smoking and not related to his lung function or empyema [exhibit 1, T26, fol 143].

80.     In examining the respiratory aspects of this case, we have examined the reported symptoms of Mr Cohen that he has shortness of breath.

81.     We have a concern that Mr Cohen’s claim of having shortness of breath is inconsistent with the objective tests of his respiratory system.

82.     When Mr Cohen was interviewed by Dr Spain in 2003 he stated that he did not experience shortness of breath when he was walking with his girlfriend or when as a storeman he was walking up and down the stairs [exhibit 1, T26, folio 140].

83.     Mr Cohen in his evidence did mention two episodes of shortness of breath that resulted in his attendance at hospital. These episodes appear to have been diagnosed as nocturnal panic attacks, although Dr Spain in his report mentions the diagnosis of “hyperventilation and anxiety” [exhibit 1, T26, folio 140].

84.     We wish to record that we have no doubt that Mr Cohen did suffer a serious illness during his naval service and underwent a serious operation. However, we do have concerns as to what pain has actually resulted from his operation.

85.     The respondent made the submission that Mr Cohen did exaggerate his symptoms. Mr Cohen’s counsel did quite properly concede that “the Applicant may or may not have impressed the Tribunal as a witness” and that “it is conceivable that the Tribunal may have struggled at times to appreciate the points the Applicant was seeking to make about the condition on his lifestyle”. However, his counsel did point out that an applicant, who has a history of alcohol abuse, may appear “unimpressive” in the formal setting of a hearing.

86.     In assessing the evidence of Mr Cohen we have considerable difficulty in accepting his evidence on the extent of the pain that he experiences and we consider that the extent of his pain is exaggerated.  We are not, however, prepared to find that this exaggeration is deliberate and we recognise that this exaggeration may well be one consequence of his anxiety condition. We note that he has been recovering from alcoholism and the use of addictive drugs.  Mr Cohen recognised that his chronic anxiety condition is a consequence of alcoholism.

87.     Dr Walden in his 2005 report recognised the effect of anxiety on Mr Cohen by remarking: “During the consultation it was my impression that David Cohen believes that his condition is far worse than it actually is and that his pneumonia and ensuing complications are far worse than any other persons. He stated on one occasion ‘I believe I am the first person that this has happened to.’ Whereas in fact empyema is a known complication of pneumonia and it is also well known that damage to the intercostal nerve (and ensuing sensory disturbances) are a known complication of thoracotomy which is used to drain a collection of pus” [exhibit A13, folio 9].

88.     The fact that Mr Cohen exaggerated his symptoms was also recognised by Dr Spain who comments: “He has a personal perspective that his symptoms are far more significant and far more life impacting than is my opinion on taking his history today” [exhibit 1, T26, fol 143].

89.     We also observe that in 1992 Mr Cohen was interviewed by Dr Peter Kendall, a consultant physician, who was commissioned by his then solicitors. Dr Kendall reported: “When he works too hard in the yard he gets short of breath and the same applies if he has to walk far at a brisk pace. He gets a cramping pain in the right lower lateral chest when he gets tired” [exhibit1, T16, 62].  At that time Dr Kendall advised Mr Cohen to cease smoking. Mr Cohen was not drinking at that time.

90.     There is no mention in Dr Kendall’s report of Mr Cohen then having any pain after a brisk walk or after vigorous activity.

91.     There was variance in the evidence concerning the extent of the time that Mr Cohen needs to recovery from pain. Mr Cohen in his evidence stated that he would recover after 15 or 20 minutes after having the stitch-like pain. When he was interviewed by Dr Bevan in 2003 he said that his symptoms are relieved by 10 minutes rest [exhibit A3]. In his written statement, signed 5 June 2006, Mr Cohen stated that a typical attack of pain would take in total 2 hours - including the time leading up to the attack, the attack itself and the recovery period [exhibit A10].

92.     There was also some variance in the evidence concerning the extent of the pain experienced by Mr Cohen. He gave different ratings of his pain to Dr Walden (3 or 4 out of 10) than he outlined in his statement signed on 5 June 2006 (8 or 9 out of 10) [exhibit A10]. While we appreciate that pain cannot be measured by mathematical precision the difference in his views as to the severity of pain is marked.

93.     There was some uncertainty in the evidence of Mr Cohen concerning his need to take pain-relieving drugs to relieve his pain. In his written statement that was dated 12 April 2006, but signed on 5 June 2006, he stated that he took two Panadols to relieve his pain if he was not tired [exhibit A10]. Mr Cohen in evidence before us agreed that “the contents of the document were true to the best of his knowledge and belief”. However, in his oral evidence he stated that he did not take any medication “on a daily basis”. He also told Professor McEvoy that he did not require medication to relieve his pain and this fact is mentioned in both of Professor McEvoy’s reports [exhibits R1 and R2].

94.     We found the evidence of Mr Cohen as to his need to take medication to be unreliable. We consider the issue of whether or not Mr Cohen takes any pain-relieving drugs as an important matter to consider in evaluating the level of pain that he actually sustains.

95.     Mr Cohen in his evidence-in-chief stated that he has experienced the stitch-like pain in his sleep, such as where he has slept on the wrong angle. However, when he was interviewed by Professor McEvoy he stated that he was not aware of the lower costal pain when he slept. If the pain from the stitch did not enable him to sleep it is surprising that he did not mention it when he was interviewed.

96.     We have no doubt that the activities described by him as causing pain, for example, sawing, gardening, golf or sexual activity - being vigorous activities - could cause pain, but we have considerable difficulty in accepting his evidence as to the level of pain that he experienced. The fact that he has been able to renovate a number of homes is significant.

97.     Mr Cohen and Mrs Cohen in their evidence and recent statements [exhibit A10, para 33-35, and exhibit A11, para 3] have referred to their claimed domestic difficulties. The respondent has commented upon the failure of Mr Cohen to mention these difficulties to the various specialists who have examined him. However, the most recent statement of Mr Cohen which contained particulars of his claimed difficulties was indeed before Dr Walden when he wrote his final report. However, Dr Walden did not make any observation about these claims.

98. In assessing Mr Cohen’s condition, we have to consider what treatment options are reasonably available to him. In fairness to Mr Cohen we have not made any finding concerning the application of s 24(2)(c) of the Safety, Rehabilitation and Compensation Act. This is because it is clear that he has not fully appreciated the two options that Dr Walden has outlined to him. Dr Walden outlined the treatment option of injecting the scar with steroid medication. This option is not dangerous and does not appear to have been properly considered by Mr Cohen. 

99.     We have considered the possible application of Table 13.1. If this Table does indeed apply we consider that the condition does not interfere with his activities of his daily living in the terms of the 0% rating in Table 13.1. We have already mentioned that Dr Walden in his report of 4 July 2005 had stated that Mr Cohen was “independent in all aspects of self-care and domestic activity” [exhibit A13, folio 4]. Dr Spain also reported that Mr Cohen “is able to undertake most activities of daily living without any restrictions. He is able to drive, cook, vacuum, hang out the washing and do the shopping and gardening without any significant difficulty” [exhibit 1, T26, folio 140].

100.   We also consider that any pain attacks are “readily reversed by appropriate medical treatment” in the terms of the 0% rating in Table 13.1. This would constitute rest and medication if necessary.

101.   Dr Walden in his report of 4 July 2005 assesses Mr Cohen’s pain score under Table 1 of the Comcare Guide as having a pain score of 2. A pain score of 2 under Table 1 [folio 59] refers to “Intermittent attacks of pain. Not easily tolerated, but short lived. Responding fairly well to treatment.”

102.   Professor McEvoy in his 2003 report records: “This symptom occurs once every several weeks and disappears with rest. He has not required any treatment” [exhibit R1, folio 2]. We have also borne in mind that the clinical notes of Professor McEvoy record the frequency of pain experienced by Mr Cohen. In his clinical notes there is a record that the dull ache causes discomfort some 8-9 times a year [exhibit R5]. That is why Professor McEvoy in his July 2004 report records that the lower costal ache “…occurs infrequently, less than monthly” [exhibit R2, folio 1]. This is below the frequency mentioned in the descriptor of the 10% impairment rating for Table 13.1 in the Comcare Guide.

103.   The frequency recorded by Professor McEvoy is also certainly below the figure of 6 or more times per month for 12 months per year, which is mentioned in the latest statement of Mr Cohen [exhibit A10, para 27]. We are not satisfied that Mr Cohen is accurate is estimating the frequency of pain that he experiences.

104.   In considering this matter we have endeavoured to keep to the forefront the question of whether Mr Cohen has suffered an injury that results in more than a minor permanent impairment: see Whittaker v Comcare (1998) 86 FCR 532; (1998) 28 AAR 55 at 68 per Drummond, Cooper and Finkelstein JJ. We have endeavoured to use the Comcare Guide in aid of this statutory purpose and not as a means of limiting it: see Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay (1992) 38 FCR 181; (1992) 28 ALD 311; (1992) 16 AAR 241 at 248 per Olney J; Whittaker v Comcare. We have concluded that Mr Cohen does not suffer from an injury that causes more than a minor permanent impairment.

105.   We also mention that whilst we consider that Mr Cohen does not have a right to compensation under the Safety, Rehabilitation and Compensation Act, he does have rights under the determinations which have been made.

106.   We also wish to record our appreciation for the assistance that we have received in this difficult matter from counsel for the applicant and the respondent.

Decision

107.   We affirm the decision under review.

I certify that the 107 preceding paragraphs are a true copy of the decision and reasons for the decision herein of Senior Member P McDermott

Signed:          Michelle Brazier

Legal Research Officer

Date/s of Hearing  5 June 2006, 6 June 2006; 9 August 2006
Date of final submissions         3 October 2006
Date of Decision  2 November 2006
Solicitor for the Applicant          Mr A Harding
Solicitor for the Respondent     Ms N Barker
Counsel for the Respondent     Mr D Rangiah