Colefax and Comcare
[2004] AATA 36
•20 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 36
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/797
GENERAL ADMINISTRATIVE DIVISION )
Re JACYN COLEFAX Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member KL Beddoe Date20 January 2004
PlaceBrisbane
Decision The Tribunal decides to affirm the decision under review. ..................(Sgd).......................
KL Beddoe
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – claim for compensation – liability – lower back sprain – temporary aggravation of pre-existing degenerative condition – aggravation contributed to in a material degree by applicant’s employment – aggravation ceased once applicant left his employment with the Commonwealth – no incapacity for work – decision affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 4(9), 14(1), 62(1)
REASONS FOR DECISION
20 January 2004 Senior Member KL Beddoe 1. The applicant made a claim for compensation, dated 1 February 1999, for “injured lower back” (T38). On 3 June 1999, the respondent determined that the applicant had suffered an injury arising out of, or in the course of military service, described as lower back sprain. The respondent also determined that there was no liability to pay compensation from 23 September 1996 because the applicant was no longer suffering from the service-related injury.
2. By letter dated 18 October 1999, the applicant’s solicitors sought review of that decision. On 21 December 1999 the respondent’s delegate notified its decision to affirm the determination (T57).
3. On 19 January 2000, the applicant’s solicitors applied for review in this Tribunal (Application Q2000/68). By a decision dated 5 September 2001, the Tribunal (Senior Member Muller, Dr Morley and Ms Cowdroy, Members) decided to affirm the decision under review.
4. Meanwhile, purporting to act in accordance with sub-section 62(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), the respondent had conducted an “own motion” reconsideration and notified a new reviewable decision dated 9 August 2001 (a date prior to the abovementioned hearing in the Tribunal but after a compulsory conference in the Tribunal). On reconsideration the respondent determined to accept liability for aggravation of the low back condition which is described as degeneration at L5-S1. It also decided that liability for the injury ceased as at the date of discharge from the Army (16 May 1999).
5. By notice dated 4 September 2001, the applicant applied for review of the 9 August 2001 determination (T58). That is the application for review now before the Tribunal.
6. It will be apparent that, because of the respondent’s “own motion” review, the Tribunal is, in effect, being asked to review a previous decision of the Tribunal. The reviewable decision is, however, a different decision to the previously reviewed decision.
7. Sub-section 14(1) of the Act relevantly provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work.
8. “Injury” is relevantly defined in sub-section 4(1) of the Act to mean:
“(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; …
but does not include …”
9. “Disease” is also defined in sub-section 4(1) to mean:
“(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth.”
10. Sub-section 4(9) of the Act provides that a reference to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury being:
“(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he was engaged by the Commonwealth before the injury happened.”
11. At the hearing Ms Carter-Nicoll appeared for the applicant and Mr Clark appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 in application Q2000/68 were before the Tribunal as the “T” Documents to which was added T58 (the formal documents relating to the present proceeding).
12. Further documents were tendered and marked as exhibits. Exhibit E is a copy of transcript of evidence in the previous proceeding in the Tribunal.
13. Oral evidence was given before me by the following witnesses:
(a) Applicant
(b) Dr RR Watson – consultant in rehabilitation medicine
(c) Dr Sharwood – orthopaedic surgeon
(d) Dr Low – orthopaedic surgeon(e) Dr Morris – orthopaedic surgeon
14. I make the following findings of fact:
(a)The applicant was born on 4 February 1976, enlisted in the Australian Army on 2 July 1996. He was discharged (medically unfit) on 16 May 1999;
(b)The applicant served as an infantry soldier required to carry heavy equipment etc during the course of his service;
(c)The applicant attributes initial lower back pain episodes to his recruit training at Kapooka with particular mention of a route march carrying a heavy pack said to have involved a march of 15 km – insofar as the applicant now asserts up to ten pack marches, I am satisfied that is a recent invention because he failed to make that assertion prior to the hearing;
(d)After training at Kapooka and Singleton, the applicant was transferred to Townsville in April 1997;
(e)In November 1997, the applicant was required to do a route march involving a heavy back-pack following which he reported to the RAP with lower back pain said to have been occurring “off and on” for the previous eight months;
(f)It seems that after November 1997 the applicant’s Army service at Townsville was at least partially taken up with investigations and therapy in relation to the back pain;
(g)The applicant says, and I accept, that at the time of his discharge from the Army he was advised to seek employment involving work of a light or sedentary nature because of his back condition. That is consistent with the description of impairment on discharge as low back pain of uncertain aetiology;
(h)While initially unsuccessful in obtaining post-service employment, the applicant eventually succeeded in obtaining employment as a delivery van driver and it seems was able to perform that work without undue interference from his back condition;
(i)The applicant gave up that employment when he moved to Brisbane seeking a reconciliation with his wife; and
(j)Eventually he obtained work in Brisbane as a taxi driver which he denied was unsuitable work but which does cause him some back pain from time to time.
The Medical Evidence
15. Document T16 is an x-ray report dated 6 March 1998, the text of which reads:
“Findings: There is slight straightening of the normal lumbar lordosis which may be seen with muscle spasm. No abnormality of the vertebral bodies or the neural arches is noted. The intervertebral disc spaces are normally maintained. No pars defects are present and no spondylolisthesis is noted. The facet joints are normal. The sacro-iliac joints and sacrum are normal. No paraspinal lesion is noted.”
16. A CT scan of the lumbar spine was subsequently performed. The report, dated 6 May 1998 (21), includes the following:
“FINDINGS:
L3-4 disc. The disc is normal. There is no compression of theca or nerve roots.
L4-5 disc. The disc is normal. There is no compression of the theca or nerve roots.
L5-S1 disc. There is no compression of the theca or nerve roots.
IMPRESSION:
No disc abnormality. No other abnormality.”
17. In the result, Dr Andrew Watson and Dr Giles opined that there may be a very small central bulge at L5 (T20 and T23).
18. In a report to Dr R Watson dated 1 September 1999, Dr Giles expressed the opinion that broad based disc bulges at L4-5 and L5-S1 were responsible for a genuine low back syndrome. Dr Giles also opined to the effects that there was a genuine disability which occurred during activities in the Army.
19. In a report addressed to the Townsville General Hospital dated 6 September 1999, Dr RRD Watson expressed his obviously tentative conclusion in these words:
“I feel that on the grounds of probability he has ‘internal disruption’ at the lower but probably the two lowest motion segments and that on the grounds of probability his service with the Army was at least the predominant provoking factor in his disability.”
20. In the report, Dr Watson goes on to indicate that he “will be supporting his appeal for service-related compensation” (T54).
21. Dr Watson’s oral evidence denied a history of Scheuermann’s Disease, thought differences in leg length was not the problem and preferred the hypothesis that pack marches cause jarring of the spine with the L4-5 and L5-S1 discs being under the greatest stress. Dr Watson said there was no evidence of underlying pathology at the time he saw the applicant.
22. The applicant had previously been seen by Dr Low at the request of Comcare (T47). In a report dated 7 May 1999, Dr Low reported on his examination of the applicant (T49). Dr Low diagnosed low back pain which was most likely caused by early degenerative change in the lumbar spine. Dr Low was also of the opinion that the back condition was probably not caused by Army service but there was a 10-20% contribution by that service which he described as very minor, unimportant, incidental. He said that carrying a pack would have aggravated and caused some back sprain which would be temporary. He thought the applicant was fit for sedentary work.
23. In his oral evidence, Dr Low was of the opinion that carrying a pack was not a major violent episode likely to injure the spine, preferring chronic disc degeneration as the explanation for the back pain which was symptomatic because of temporary workplace aggravation, which would settle when the aggravation ceased. In coming to that opinion Dr Low said he has many clients in the infantry and was aware of what was involved in pack marches.
24. Dr Morris made a report dated 5 December 2000 addressed to the Australian Government Solicitor (Exhibit 1). Dr Morris set out a brief history not inconsistent with other material before the Tribunal. He considered the x-ray and MRI reports and concluded there was a disc bulge at L4-5 level and a more diffuse disc bulge at the L5-S1 level which he described as a degenerative disc.
25. Dr Morris concluded that the applicant suffers from degeneration at L5-S1, which he has suffered for many years and which is a naturally occurring condition. That condition may have been aggravated on a temporary basis while the applicant was carrying a pack but the employment effects have ceased. Because of the degenerative condition he does have an incapacity for employment which would stress his back.
26. In a supplementary report dated 3 May 2001, Dr Morris noted the presence of a Schmorles’ node attributable, it seems, to Scheuermann’s Disease occurring when a teenager between 13 and 16 years of age.
27. In his oral evidence, Dr Morris said a Schmorles’ node was not caused by a specific trauma. He also said that the bulge at L4-5 suggests a constitutional degenerative condition and that the pack marches, whether three as claimed initially or 10 to 15 as now claimed, were not the cause of the condition.
28. Following the previous hearing the applicant obtained a medico-legal report from Dr Sharwood dated 6 June 2002 (Exhibit C). Dr Sharwood records a history of significant back pain “even from the time when he was at the Recruit Training Battalion”. Dr Sharwood acknowledges no contemporaneous record of this back pain.
29. Dr Sharwood’s opinion was as follows:
“OPINION: I believe this patient is suffering from a lumbar disc lesion. It is most likely to have been precipitated by his carrying packs as he describes. He does not have any recorded specific injury, which precipitated the problems. The symptoms that he described throughout his military career are those of a lumbar disc lesion. He has had no true sciatica. There is no evidence of nerve root compression. I can see no evidence of problems in his thoraco-lumbar area. He has a mild thoracic scoliosis, but this is of no clinical significance.
His overall disability at present is fairly minor. He has minimal restriction of movement of his lumbar spine and his overall rating would be (5%) disability, as a result of minor restrictions of back movement. This is not likely to deteriorate in the future, though he would have to be careful about the sorts of activities he does. Clearly he would be unsuitable for military service, as it is likely he will develop back pain with heavy lifting and bending. Retraining into activities such as driving would be quite suitable. The long-term prognosis is good and I doubt he will need any surgery.”
30. In a letter dated 1 November 2002, he qualified that opinion by saying the lumbar disc lesion was caused by the applicant carrying packs as he describes. Dr Sharwood also said that had the applicant not been carrying packs he may well have developed such a lesion, but it may have been asymptomatic or he may not have developed the lesion at all. Dr Sharwood confirmed there was no evidence of nerve root compression nor sciatica.
31. In his oral evidence, Dr Sharwood said a lumbar disc lesion at L5-S1 level can be instant or may take up to a couple of years to present. Carrying a heavy pack could be a significant factor in developing a lesion. He was unable to say, on the material before him, as to whether the applicant had a degenerative condition when he enlisted.
Consideration
32. The applicant relies upon the evidence of Dr Sharwood and Dr RRD Watson to support the contention that the carrying of heavy packs on route marches was the cause (or aggravation) of the applicant’s back condition resulting in an injury as defined.
33. For the applicant to succeed I need to be satisfied that his service in the Australian Army either caused the lumbar disc lesion or made a material contribution to a pre-existing degenerative condition albeit that the condition only became symptomatic because of the aggravation during Army service.
34. This is not a case where a traumatic event resulted in injury to the applicant’s spine. It is a case of claimed back symptoms caused by a heavy pack carried on a long march. The applicant’s evidence about these marches is inconsistent. His statement referred to three marches but he now says there were at least ten. I doubt that I have heard the truth of the matter.
35. The applicant’s initial training was with 1 Recruit Training Battalion at Kapooka from 2 July 1996 for approximately three months.
36. His medical records show at least seven attendances at RAP during this time, the most notable complaints being knee problems and injury of a toe. Physiotherapy was ordered but the applicant did not attend for the physiotherapy.
37. At the hearing before the first Tribunal the following occurred during examination-in-chief of the applicant (at page 17 of the transcript):
“MR HARDING: Now, you say you again complained to your section commander when your back was aching after a march at Singleton. Right. Now, why didn’t you take it any further than your section commander?---Well, when you go to Kapooka and – where I went was to Singleton if you go to the RAP they – they would normally put you on what they call a chit-wiser which is a restriction of – of duties. And you go to the RAP, you get classed as what they call a malingerer and if you get labelled with that – that name you are – you’ve sort of – you’re sort of hated. And you get a – you’re obviously going to miss a part of the course that you need to do so you’re going to be there longer as well. The reason I didn’t go was because I again believed what the section commander had told me, that again I wasn’t used to carrying a pack.
Okay. And then you went to Townsville. Do you recall when you went to Townsville?---I got to Townsville approximately 27 April 1997.
Okay. Now, your medical records show that you reported for medical attention on 11 November 1997 complaining of back – lower back pain. And the record shows that the note was made of back pain being on and off for the last eight months. Okay. Now, over that period of time from Singleton and your time in Townsville do you recall experiencing on and off back pain?---Yes. It wasn’t – it was – it was – it was more of a – it was like a tolerable type pain. You know, so it wasn’t enough to go – to warrant going to the RAP but it was enough to be annoying.
Okay. Well, why did you go to the RAP on 11 November 1997?---Because it go to a point where I couldn’t handle the pain any more. It got really bad. It got to a point where I tried to get out of bed one morning and I was – I was flat out bending over to touch – you know, to tie my boots. It just – it was painful, very painful.
All right, okay. Well, on that day – the note says you had done a pack march that day and you felt pain in your buttock region. Do you recall that pack march the day that you went to the RAP?---Yes, I do.
Okay. Now, what – do you recall whether you continued and finished the pack march?---Yes, I did.”
38. Before this Tribunal the following exchange occurred in the course of cross-examination of the applicant (at page 14 of the transcript):
“Well, if there were more pack marches that caused you discomfort, why aren’t they mentioned in your statement? Why do you only mention three?---For the simple fact that as I explained in the last hearing, you don’t complain at Kapooka and you don’t complain at Singleton, every chance you get, about back soreness, injuries, anything like that. For the simple - - -
Can I just stop you. I’m not talking about whether or not you complained back in your army career. There’s nothing stopping you from giving what evidence you want, or making whatever complaint you want in these proceedings, is there?---No.
There’s nothing stopping you from setting out how many times pack marches caused you discomfort, or back pain, in a statement which you’ve given to your solicitors, is there?---No.
No. Well, that’s the issue, you see? And that’s all you mentioned in your statement. Three occasions. Isn’t that so?---In the statement, yes.
Well, why not mention more – that there were more occasions, as you’ve told us today?---They’re the three major issues, the three – not major issues, but they’re the three – what’s the word for it – the three events of any major significance.
I see, but haven’t you told us here there were up to 10 pack marches that would have caused you problems?---Yes.
Isn’t that so?---Throughout the army – throughout my army career, yes.
Well, there’s a big difference between 10 and three, isn’t there?---But they’re the only three times that I complained to someone about it and to - - -.”
39. In light of the above, I do not accept the assertion that the applicant did not report his back condition while at Kapooka and Singleton because he thought there would be adverse consequences by going to the RAP. I am satisfied the applicant is an unreliable historian and have preferred the contemporaneous records.
40. In light of the medical evidence I am satisfied that it is more likely than not that the applicant suffered aggravation of a pre-existing degenerative condition during his Army service and that aggravation was contributed to in a material degree by that Army service. In particular, the aggravation arose from carrying heavy packs on at least three occasions although the condition only became symptomatic at a later time given that the first and second occasions occurred during recruit training and did not result in any attendance for medical attention.
41. The aggravation caused by carrying heavy weights apparently ceased at some time prior to the applicant’s discharge from the Army. While it is difficult to discern exactly when this was, I am satisfied that the aggravation ceased prior to discharge so that the applicant was once again asymptomatic. I have come to this view because the applicant took up employment as a deliveries driver after his discharge without any apparent ill-effect. He gave up this employment for reasons not connected with his back condition.
42. While I am satisfied the applicant suffered an injury as defined during his Army service, I am not satisfied that at the date of discharge he was suffering incapacity for work because of that injury.
43. Any continuing incapacity for work, which Dr Sharwood described as minor restriction of back movement, was due to the naturally occurring condition described by Dr Morris. Insofar as Dr Watson expresses a different conclusion, I prefer the view of Dr Morris as the appropriate specialist and note his view is supported by Dr Low’s opinion. I am satisfied there is no relevant incapacity for work.
44. For these reasons the decision under review, although different from the decision of the previous Tribunal, should be affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe
Signed: Sarah Oliver
AssociateDates of Hearing 25 and 26 June 2003
Date of Decision 20 January 2004Counsel for the Applicant Ms Carter-Nicoll
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Mr Clark
Solicitor for the Respondent Australian Government Solicitor
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