David and Military Rehabilitation and Compensation Commission

[2007] AATA 1859

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1859

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 200601323

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHAN DAVID

Applicant

And MILITARY REHABILITATION & COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Dr Ion Alexander, Member

Date16 October 2007

PlaceSydney

Decision The decision under review is affirmed.

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

Dr Ion Alexander
  Member

CATCHWORDS

WORKERS COMPENSATION- permanent impairment - lower limb injury - tibial periostitis (shin splints) - Achilles tendinitis - service in the Australian regular army.

LEGISLATION

Safety, Rehabilitation andCompensation Act 1988 ss 4, 24, 27

REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL

16 October 2007 Dr Ion Alexander, Member

INTRODUCTION

1.      Mr David served in the Australian Regular Army as a rifleman for nearly seven years until his medical discharge in October 2006.

2.      During his army service he suffered injuries to both lower limbs, namely bilateral tibial periostitis (‘shin splints’) and left Achilles tendinitis alternatively described as tendinopathy or paratendinitis.

3.      These injuries were accepted as compensable under the Safety, Rehabilitation andCompensation Act 1988 (‘the Act’) in a determination dated 18 August 2005.

4. Mr David claimed that these injuries have resulted in permanent impairment thereby creating an entitlement for compensation under s 24 and s 27 of the Act.

5.      The claim for compensation for permanent impairment was declined by a determination of the Military Rehabilitation and Compensation Commission (‘MRCC’) dated 20 September 2005, a decision that was affirmed on 21 September 2006, after reconsideration.

6.      It is the reconsidered decision that is the subject of appeal to the AAT.

ISSUES

What are the relevant circumstances with regard to Mr David’s injuries?

7.      Evidence from Mr David and various documents establish that during his army service, that included several overseas postings, Mr David had a clear intention to be selected for the Special Air Service Regiment (SAS). This required a superior level of physical fitness and led Mr David to undertake significant additional physical training in order to prepare for SAS selection. This training involved many extended periods of intense physical activity including pack marches and running with increasing levels of difficulty. Much of this additional training was self directed and done during periods in between usual operational service.

8.      In 2002, near the end of a six months tour of operation in Timor, and following a period of intense training, Mr David first noticed pain in his shins. His symptoms apparently settled with a reduction in training and some medication. On returning to Australia he had physiotherapy and remained on light duties for about two to three months before returning to full duties.

9.      In May 2003, Mr David had a bone scan of both feet. Mr David’s evidence with regard to the circumstances leading to the need for a bone scan was somewhat vague.

10.     The report itself dated 6 May 2003 stated that the reason for the study was ‘pain in the lateral aspect of the right foot since long distance march three days earlier.’

11.     The scan revealed some abnormality in the lateral aspect of the right foot with an incidental finding of a shin splint injury in the right tibia.

12.     In 2004, Mr David was posted overseas for two months to Malaysia and one month to Singapore.

13.     While in Malaysia, Mr David increased his level of training up to three times per day with no apparent symptoms with regard to his shins. While in Singapore on a three day survival course, Mr David twisted his left foot in a pothole, thereby apparently injuring his left Achilles tendon. He also claimed that following this injury his shin symptoms recurred. Treatment included rest and medication. On returning to Australia three weeks later he went on leave and continued with treatment including physiotherapy. He recovered sufficiently to return to full duties within one month.

14.     A bone scan done on 12 October 2004 reports a scan appearance ‘consistent with mild bilateral shin splints.’ I note that the report also states that there is no scan abnormality to suggest left Achilles tendinitis or any other significant active bone or joint pathology in the left ankle.

15.     In his evidence, Mr David did not provide any explanation as to the reason for the scan. The report itself stated that the reason for the scan was ‘bilateral shin pain and pain in left heel (sic).’

16.     In early 2005, Mr David was deployed overseas to the Solomon Islands where he again significantly increased his level of physical training. As the training increased in intensity Mr David began to experience symptoms with regard to his shins and left ankle.

17.     After returning to Australia, Mr David was placed on an injury management program.

18.     On 13 May 2005 he was seen by Dr Delaney, a sports medicine practitioner, who diagnosed left Achilles paratendinitis and initiated treatment with anti-inflammatory gel.

19.     In a report dated 2 August 2005, Dr Hope, Orthopaedic Surgeon, after having examined Mr David, stated that ‘four years after symptom initiation there is no significant pain, mechanical symptoms or loss of function in the lower limbs with respect to shin splints. However, there is a mild Achilles tendon pain induced after a 5km run.’ On physical examination he noted, ‘full active pain-free range of motion in the ankles’ but found ‘the left Achilles tendon mildly tender in the mid substance indicating mild continuing inflammation.’ He concluded that the ‘left Achilles tendinopathy will resolve entirely six months after impact loading ceases’ and that ‘there is no impairment as a result of either the bilateral shin splints or left Achilles tendinopathy.’

20.     On 20 September 2005, Mr David was provided with new boots but symptoms with regard to his Achilles tendon recurred within two to three weeks, particularly after a five kilometre pack march.

21.     Mr David was again referred to Dr Delaney for specialist treatment that included several injections of cortisone in both shins and the left ankle.

22.     I note that the report of an MRI scan of the left ankle, ordered by Dr Delaney, dated 11 October 2005, stated that there was no evidence on the scan to suggest Achilles tendinopathy.

23.     In his evidence in chief in response to a question from the tribunal Mr David said that just prior to the treatment with injections he had been increasing his level of physical activity from doing nothing up to a normal level. One week after the injections he claimed that he had too many symptoms, complicated by significant bruising and therefore he stopped all training. Furthermore he indicated that he did not restart any training during the rest of his time in the Army.

24.     I note however that on 17 November 2005, an entry in the outpatient clinical record stated that following the injections Mr David was able to pack march and run, that his shins had remained pain free but that his Achilles tendon pain had recurred.

25.     In December 2005 the possibility of operative intervention arose apparently as a result of clinical signs of posterior impingement syndrome of the left ankle. Mr David declined an operation and was treated conservatively.

26.     Mr David’s evidence covering the period between October and December 2005, particularly with regard to his level of physical activity, was confused and inconsistent.  

27.     A report, commissioned by Mr David’s solicitor, dated 16 June 2006 was provided by Dr Blake, Orthopaedic Surgeon. After having taken a comprehensive history and a detailed physical examination, Dr Blake opined that Mr David’s history and the findings on bone scans indicated that he had suffered from shin splints on more than one occasion when attempting to upgrade his fitness. Dr Blake noted that Mr David complained of ongoing symptoms despite no longer undertaking demanding physical activities but was unable to find objective evidence of any ongoing local condition. On examination Dr Blake noted tenderness over both tibial surfaces and commented that some of his findings were inconsistent but concluded that the condition of shin splints had resolved.

28.     With regard to the left heel, Dr Blake concluded that the Mr David’s history was consistent with an Achilles paratendinitis and was also related to increases in physical activity. Again he could find no objective clinical evidence of active ongoing pathology and opined that the condition had resolved following discontinuance of demanding activity.

29.     However, examination of the left ankle revealed reduced range of movement when compared to the right ankle. Mr David attributed the reduced range of movement to ‘Achilles pain.’

30.     Dr Blake noted that clinically the left Achilles tendon was intact with ‘no clear pathology and inconsistent response’ when testing for tenderness. He went on to comment that Mr David’s clinical presentation of ongoing pain and restriction of movement, should have suggested significant pathology involving both the ankle and subtalar joints or alternatively a voluntary restriction of the movements. Dr Blake went on to comment that the MRI scan in October 2005 showed no abnormality that could explain Mr David’s complaints and therefore the cause of the restricted movements remained uncertain. 

31.     During 2006 Mr David remained on a rehabilitation program and continued on light duties until his discharge from the Army in October 2006.

32.     Following his discharge from the Army, Mr David continued under the care of his local General Practitioner. Apart from walking in the swimming pool at the gym Mr David has not had any further specific treatment. He does not take any medication and has not been referred for any specialist assessment.

33.     In about March 2007 Mr David started his own business that involves telephone and internet installation.

Have Mr David’s injuries, namely his bilateral tibial periostitis (‘shin splints’) and or his left Achilles tendinitis, resulted in permanent impairment?

34.     Mr David claims that he has suffered permanent impairment as a result of each of the injuries he has suffered during his service namely bilateral tibial periostitis (‘shin splints’) and left Achilles tendinitis.

35.     He claims that as result of the injury to his shins he is permanently limited in his capacity to walk as result of pain. In his oral evidence he said that he could walk at normal pace but that his shins hurt in the evening after walking. He conceded that he doesn’t always have pain after walking but also claims that he is limited to walking about 500 metres before experiencing pain. He also conceded that the problems he has with stairs and grades are related to his left Achilles tendon and not his shins unless he walks long distances.

36.      With regard to the left Achilles tendon Mr David claims that he is limited to three to four steps before getting pain in the tendon. 

37.     Despite these apparent limitations Mr David admitted under cross examination that during the first few weeks when he was setting up his business in March 2007 he was able to climb a ladder up to twice a day and climb into roof spaces and under houses albeit with variable discomfort. 

38.     Mr David also admitted that he currently drives a manual vehicle that requires him to use his left foot to depress the clutch.

39.     In support of his claim Mr David relies on the report of Dr Hope, dated 7 December 2006.

40.     In his report Dr Hope provided a relatively superficial history that emphasised that exercise continued following cortisone injections.

41.     I note that the history of continuing exercise is not consistent with Mr David’s oral evidence.

42.     Dr Hope then went on to describe a functional profile based entirely on symptoms reported by Mr David. Physical examination included a series of functional tests that were all found to be abnormal and were claimed to indicate difficulties with grades, steps and walking distances. On examination Dr Hope also found bilateral tibial tenderness, mid-Achilles tenderness with pain on stretching and also less than five degrees of active range of motion of the left ankle and subtalar joints.

43.     Dr Hope noted that at the time of his review 16 months earlier both conditions were resolving. He went on to say that ‘cortisone injections were undertaken and heavy exercise continued - predictably resulting in an increase in lower limb symptoms.’ Dr Hope then concluded that both conditions are now permanent and will not recover but provides no explanation for his conclusion.

44.     Dr Hope assessed the degree of permanent impairment using the Comcare Guide and allocated 20 per cent whole person impairment under Table 9.5 on the grounds of difficulty with grades steps and distances and 20 per cent whole person impairment under Table 9.2 on the grounds of ankle ankylosis.

45.     In his oral evidence, Dr Hope conceded that the validity of his functional testing was ‘absolutely’ dependent on the cooperation of the person being tested and that deliberate versus pain induced limitation could be difficult to distinguish.

46.     In Mr David’s case however, he believed that the results of the functional tests were consistent with real pathology on the grounds that the results were consistent with the history, current symptoms and the functional profile. It would appear that Dr Hope relied significantly on the information provided by Mr David rather than the validity of his observations.

47.     When informed that Mr David was able to climb a ladder Dr Hope expressed surprise as such an activity was not consistent with his assessment.

48.     When asked to attribute the contribution of each injury to Mr David’s claimed impairment Dr Hope’s explanation was unclear and of little assistance.

49.     In response to a question from the Tribunal as to why Mr David’s conditions had deteriorated so markedly between the first and second assessments Dr Hope explained that Mr David had told him that his conditions had almost resolved but that his symptoms had recurred after he had a series of steroid injections and continued heavy training.

50.     When asked to respond to the fact that Mr David had stated in his oral evidence that he did not continue heavy exercise Dr Hope said ‘I don’t know quite how to answer because he gave me the clear impression during the interview that there was extended periods of heavy exercise, you know, pack marching and all that sort of stuff.’

51.     Dr Hope also conceded that following his first assessment in 2005 he would have expected full recovery of Mr David’s conditions if heavy exercise had ceased.

52.     Again in response to a question from the Tribunal, Dr Hope conceded that ankle ankylosis of less than five degrees was indicative of a very stiff joint that did not move very much. When asked what effect such a stiff ankle joint would have on the ability of a person to drive a manual car Dr Hope said ‘I would expect them to be unable to drive a manual vehicle.’

53.     I also note that in a supplementary report dated 16 June 2006, Dr Blake in addressing the question of permanent impairment stated that technically Mr David could be assessed at 20 per cent whole person impairment under Table 9.5 but that this would be based entirely on the history given by Mr David.

54.     Dr Blake did not attribute this impairment to either shin splints or Achilles tendinitis.

CONSIDERATION AND REASONS

55. In deciding this matter I am mindful that s 24 (1) of the Act provides for the payment of compensation where an ‘injury to an employee results in permanent impairment.’

56. Section 4 of the Act determines that permanent means ‘likely to continue indefinitely’ and s 24 (2) requires that for the purpose of determining whether an impairment is permanent I shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee’s condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

57.     There is no dispute that Mr David suffered injuries during his service namely tibial periostitis and left Achilles tendinitis. The evidence points to a pattern of increasing symptoms after intense physical activity followed by recovery as the physical activity was reduced.

58.     Mr David now claims that he has permanent impairment as a result of these injuries.

59.     The evidence in this matter is conflicting and somewhat unclear, particularly the medical evidence.

60.     While Dr Blake did find evidence of impairment in the range of movement of the left ankle he did not attribute this impairment to either of the relevant injuries. He was clearly of the view that there was no evidence of pathology with regard to the ‘shins’ or the left Achilles tendon.

61.     Dr Hope opined that Mr David did have permanent impairment as a result of the injuries to both shins and the left Achilles tendon. He did so on the strength of a single consultation and an assessment that relied significantly on the history given to him by Mr David. This history was not consistent with Mr David’s own evidence to the Tribunal. Dr Hope’s functional testing and physical examination also relied significantly on Mr David’s cooperation and resulted in findings that showed a profound deterioration in comparison to a previous relatively recent assessment.

62.     Furthermore, Dr Hope’s findings with regard to the range of movement of the left ankle showed significant deterioration compared with Dr Blake’s findings only a few months earlier.

63.     I found Dr Hope’s explanation for this significant change unsatisfactory in that it was largely based on his assumption that there had been a history of ongoing intense physical exercise, an assumption that was contradicted by Mr David’s oral evidence. 

64.     The accuracy of Dr Hope’s assessment is further challenged by the fact that subsequent to the time of the second consultation Mr David admitted to be able to perform tasks, that Dr Hope conceded, were not consistent with his assessment. 

65.     The most favourable conclusion I could draw is that Dr Hope’s assessment had been correct, but that Mr David’s conditions had subsequently improved sufficiently to allow him to undertake activities that had not been possible at the time of the assessment.

66.     It follows that at the time of Dr Hope’s assessment Mr David’s claimed degree of impairment could not be considered to have been permanent.

67.     Furthermore, it is clear that the medical assessments of any impairment resulting from Mr David’s injuries have depended significantly on his reliability as a historian and his cooperation with physical examination.

68.     It is relevant, therefore that I found Mr David’s evidence before the Tribunal to be frequently vague and inconsistent and in my view not entirely reliable.

69.     For the aforesaid reasons, I am not satisfied that Mr David has permanent impairment resulting from either tibial periostitis or Achilles tendinitis.

DECISION

70. Mr David does not have permanent impairment resulting from tibial periostitis or Achilles tendinitis and is therefore not eligible for payment of compensation under s 24 of the Safety, Rehabilitation andCompensation Act 1988.

71.     The decision under review is affirmed.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

Signed:         ....................[sgd]..............................

Keelyann Thomson, Associate

Date/s of Hearing  19 July 2007, 11 September 2007
Date of Decision  16 October 2007

Counsel for the Applicant         Cameron Jackson
Solicitor for the Applicant          Katrina Hodgekisson
Counsel for the Respondent     Rhonda Henderson
Solicitor for the Respondent    Bianca Audsley