Davies and Department of Veterans' Affairs for Comcare
[2003] AATA 752
•5 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 752
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1509
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL DAVIES Applicant
And
DEPARTMENT OF VETERANS' AFFAIRS FOR COMCARE
Respondent
DECISION
Tribunal Ms N Bell, Member Date5 August 2003
PlaceSydney
Decision The decision under review is affirmed.
………………………………….
Ms N Bell
Member
CATCHWORDS
COMPENSATION - date of permanent impairment – new or different permanent impairment occurring after certain date - diagnosis of lumbar and cervical spondylosis
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 124, 24, 4
Compensation (Government Employees) Act 1971 – section 39(4)
Veterans’ Entitlement Act 1986
Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11
Brennan v Comcare (1994) 50 FCR 555
Comcare v Levett (1995) 60 FCR 14
Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390
Department of Defence v West (1998) 85 FCR 491
Comcare v Maida (2002) 36 AAR 69
REASONS FOR DECISION
5 August 2003 Ms N Bell, Member 1. This is an application by Mr Paul Davies ("the Applicant") for review of a decision dated 31 July 2001 by a reconsideration delegate of the Department of Veterans' Affairs for Comcare ("the Respondent") that the Applicant is not entitled to permanent impairment compensation pursuant to section 124 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
2. The Applicant applied for review of that decision by this Tribunal. At the hearing of the application the Applicant was represented by Mr Newell of Counsel and the Respondent was represented by Mr Elliott of Counsel. The Applicant gave oral evidence to the Tribunal as did Dr P Harvey-Sutton and Dr Evans, the latter by telephone. The Tribunal had before it the following documentary evidence:
Exhibit No
Description
Date
TD1
Documents pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 T1-T97, pp1-170
A1
Report of Dr R Evans
24 June 2002
A2
Applicant's Statement
4 October 2002
A3
Staff-in-confidence report
12 August 1988
A4
Staff-in-confidence report
12 August 1990
A5
Letter from Dr C Luke
4 October 1989
A6
Bundle of medical reports from 1987
A7
Bundle of medical board examination records
A8
Supplementary report of Dr R Evans
13 May 2003
R1
Clinical notes of Dr J Lose
R2
Record of medical examination
21 October 1985-86
R3
Medical Board examination report
17 October 1986
R4
Record of medical attendance
10 February 1988
R5
Physiotherapy notes of Ms Luke
10 February 1988
R6
Resume of Dr Harvey-Sutton
background
3. The Applicant is aged 47 years and enlisted in the Australian Regular Army on 13 November 1979 and achieved the rank of Bombardier. His usual duties with the Australian Regular Army were that of storeman. The Applicant was discharged on medical grounds from the Australian Regular Army on 13 January 1993.
4. The Applicant made a claim for permanent impairment compensation in respect of his lower back and neck for injuries sustained on 18 May 1981 and 14 March 1985 occurring during the course of his service with the Australian Regular Army. On 6 February 2001 the primary delegate of the Respondent determined that the Applicant was not entitled to permanent impairment compensation pursuant to section 124 of the Act on the basis that any impairment sustained to the Applicant's lower back or neck would have become permanent prior to the commencement date of the Act, being 1 December 1988, and in such circumstances lump sum compensation is not payable unless the impairment is classified as a certain loss as specified in section 39 (4) of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act”). That decision was affirmed on reconsideration on 31 July 2001.
issues and legislation
5. The Applicant contends that while he received initial injuries to his neck and low back in the early to mid 1980’s, his impairments did not become permanent until 1989. The Respondent, on the other hand, contends that the Applicant's impairments had become permanent prior to 1 December 1988. The significance of that date is that it was the commencement date of the Act. The transitional provisions of the Act, and in particular section 124(3) provide that a person is not entitled to receive compensation for a permanent impairment that occurred before the commencement date if the person was not entitled to receive compensation in respect of that impairment under the 1971 Act. The 1971 Act contained a table of maims which provided for compensation to be paid in respect of a number of parts of the body. The neck and back were not covered by that table of maims and so the Applicant would not have been entitled to lump sum compensation for permanent impairment of his neck and back under the 1971 Act.
6. Section 124(3) of the Act provides:
"(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case—under the 1971 Act as in force when the impairment or death occurred."
7. Section 24 of the Act provides:
"Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether impairment is permanent, Comcare 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.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(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.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss; and
(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000."
8. For this reason, the central issue to be considered by the Tribunal in this application is when the Applicant's impairment became permanent.
Applicant's evidence
9. Exhibit A2 is a statement by the Applicant dated 4 October 2002, which was confirmed by the Applicant in his oral evidence to the Tribunal. After describing the history of his Army career and his employment since leaving the Army in 1993 the Applicant described the injuries he sustained whilst in the Army as follows:
"…
13. On 1 March 1981 the Army Medical Board downgraded my health classification to Communication Zone Exempt ("CZE"). This classification meant that I could not be deployed overseas to a combat unit or to a field force unit. I had previously been assessed as Fit Everywhere ("FE") on 18 October 1979. This is an unrestricted grading which meant that I was eligible to do light duties.
14. On 18 May 1981 when I was a gunner at 16 AD Woodside South Australia, one of my duties involved working as a barman for approximately 3 month. I was required to take a 18-gallon keg of beer from a truck, lifting it with another person who I believe to be Corporal Fullstone. Corporal Fullstone lost his grip on the keg, causing it to slip, which caused me take, the full weight of the keg. There was a small wall behind me, which was approximately 18 inches high. When the keg fell on me I fell back over the wall and the keg landed on my chest. This caused injury to my back and neck. I was treated with painkillers and physiotherapy and I was off work for a few weeks. I have had continuing back and neck pain ever since that incident…
15. On 17 June 1982 I was upgraded to FE…
16. On 3 August 1982, I was hospitalized for chronic back and neck pain. I was in hospital from 3 August 1982 until 31 September 1982. The treatment I received included medication and physiotherapy.
17. In approximately July 1983, I was standing in the bath. Due to the pain in my back, I moved awkwardly and due to the bath being slippery, I fell and landed on my back. I was admitted to number 2 Military Hospital and underwent manipulation under anaesthetic. I was admitted to hospital on 4 May 1983 and discharged from hospital 61 days later on 6 July 1983.
18. On 26 July 1984, the Army Medical Board graded my classification to FE…
19. On 5 September 1984, I was playing organised Army Rugby Union. I fell awkwardly causing me to injure my left knee. I was treated with medication and physiotherapy.
20. In approximately November 1984, I jumped off an army truck and landed awkwardly causing pain high in my thoracic spine as well as lower back pain…
21. On 14 March 1985 I was with a group of people walking down stairs. The person walking behind me, whose name I cannot now recall slipped and fell into me causing me to fall down the stairs. I injured my back in the fall and was admitted to hospital on 21 March 1985 and discharged 29 days later on 21 April 1985…
22. On 27 May 1985, the Army Medical Board downgraded my health classification to CZE…
23. On 17 October 1986, the Army Medical Board upgraded my classification to FE.
24. On 25 October 1987, I was admitted to hospital for septoplasty and turbonecity to treat nasal obstruction. The surgery was performed by Dr Szasz. I was discharged from hospital on 2 November 1987 and was on 2 weeks convalescents leave.
25. On 16 October 1988, I was admitted to hospital to again treat nasal obstruction. I underwent procedure to remove the uvula and cautuery of inferior turbinates. I was discharged from hospital on 14 November 1988.
26. On 16 August 1989, the Army Medical Board downgraded my classification to CZE.
27. On 22 June 1990, I reported to the army doctor due to an injury to both my knees which I had sustained playing regimental sports.
28. On 18 June 1991, the Army Medical Board downgraded my classification to Below Medical Standard ("BMS"). This grading meant that I could only go to a training establishment or work in an office.
29. On 11 September 1991, the Army Medical Board regraded my classification to CZE.
30. On 17 August 1992, the Army Medical Board downgraded my classification to BMS. I was eventually discharged from the Army on 13 January 1993 due to medical reasons.
In the normal course, I would have been discharged from the Army in November 1999 with a full pension. However, due to my back and neck injury the Army discharged me in 1993…"
10. The Applicant then described his current condition as follows:
"(a) Tightness in my neck and lower back.
(b) Aching in my lower back and neck area.
(c) Throbbing in my lower back and neck area.
(d) I have trouble turning my head and when I do turn my head I feel a sharp pain in my neck. I also suffer from headaches virtually every day."
11. In relation to the progression of his condition, the Applicant said in his statement:
"…
42. I believe that my back and neck pain has definitely become worse since 1 December 1988. I had very severe pain prior to that date which restricted what I was able to do. I have noticed however, that my back and neck are now worse. For example, there are days where I have to lie on the floor and can't move. The pain also seems to be more severe and occurring more often.
43. I also note that in 1988 I was still playing Army sport such as football, running, tenpin bowling and doing other physical activities in the Army. I have had to give up all of these recreational activities since leaving the army due to the pain that I suffer in my back and neck. I was an A-grade competition ten pin bowler and came second in the State in 1990. As I could not stand the pain in my neck and back and the pain was interfering with my rhythm and my ability to play I gave up bowling. I also do not socialise with friends as I used to due to the pain.
…"
12. The Applicant, in oral evidence, described his duties in the Army as including taking heavy equipment and artillery into the field, loading and unloading stores, packing and unpacking shelves. He said that in 1988 he also took part in 24-hour guard duty shifts, which involved two hours on and four hours off and was an instructor in weapons and drill, supervising other soldiers. He said that he also played regimental sport, which he did not stop until 1991 or 1992 and which included rugby union and tenpin bowling.
13. In cross-examination the Applicant agreed that since his injury in 1981 he has had some restrictions in relation to his back. He also agreed that in October 1984 he made a claim for a disability pension for his cervical spine and lumbar spine conditions. He also agreed that in July 1984 he made a compensation claim in relation to his back and neck, which included pain and restriction of movement. He also conceded that, notwithstanding a classification of "FE" (fit everywhere) in 1986, he still had problems with his cervical and lumbar spine, which caused some restrictions. He was also having problems with his legs in 1985 and 1986. He said that his knees had also been a problem over the years and that he received a compensation lump sum in relation to his knees after 1993. He said that his knees first started to give him trouble in about 1985.
14. Following the production of a number of documents by the Respondent on subpoena, the Applicant told the Tribunal that when he was being considered for promotion from Lance Bombardier to Bombardier he passed a physical training test, which involved a 25 minute run, 80 sit-ups and 20 pull-ups. He said he was promoted in August 1988. He said that no question was raised with him at that time about his level of physical fitness.
15. He said that in 1990 he was promoted to Sergeant and passed a similar physical training test.
16. In further cross-examination the Applicant agreed that in preparing a report for promotion, no medical examination is conducted and the officer completing the report is not a medical officer.
17. The Applicant also agreed that even though he managed to pass the relevant tests to be classified as fit everywhere, he was in pain and put up with the pain. He agreed that he continued to have problems with his back and neck and that in 1987 he was taking Panadol for his pain at a rate of 10 or 12 a day. He also agreed that in February 1988 he had a flare up of his neck and lower back pain.
medical evidence
18. In his report dated 24 June 2002 Dr R Evans gave the following diagnosis:
"Mr Davies first experienced neck pain in 1980 after being involved in an obstacle course. He suffered a back injury in June 1981 when he suddenly took the full weight of a 100-kg keg and fell backwards over a wall with it. Both the neck and back pain gradually worsened over the years being aggravated by the work he was doing as a Storeman, particularly bending and heavy lifting. I confirmed again with Mr Davies that, though the two episodes referred to above were the initiating events in the neck and back pain, that they were not the major problems, and that his work between 1980/1 and 1993 probably contributed more than the initial episodes. He was discharged from the Army in 1993 as the impairment of his fitness was such that he was no longer a useful soldier. He then had difficulty in gaining employment, suffered financial problems with the loss of house, and suffered a broken marriage. He thus developed depression. At the time of my last interview he was working as a security officer, but had to cease this work in 1998 because of pain in his neck, back and apparently also knees."
19. Dr Evans assessed the Applicant's permanent impairment of his neck at five per cent, saying that one third is a result of the episode of 1980 and two thirds a result of the nature and conditions of his work between that time and 1993, the contribution from each year being equal.
20. Dr Evans assessed the Applicant's permanent impairment of his back at 15 per cent and his impairment of his right lower limb at 10 per cent and the left at 10 per cent. He said that of these disabilities, one third is a result of the injury of June 1981 and two thirds result from the nature and conditions of his work between that time and 1993, the contribution from each working year being equal.
21. In addition Dr Evans said:
"…Accepting that one third of the neck and back problems were a result of the initial injuries of 1980 and 1981 respectively and two thirds a result of the work he was doing between those dates and 1993, the Mr Davies neck and back conditions did not become permanent until at least the time that he left the Army in 1993. I calculate that, of the neck disability, 5% (one twentieth) would have occurred as a result of the nature and conditions of his work during each year between 1980 and 1993. With regard to the back disability, 5.5% would have occurred, as a result of the nature and conditions of each year's work between 1981 and 1993. Thus, arguing from a legalistic point of view, as this is the only way in which the matter can be approached, the neck and pain were still worsening in the years between 1988 and 1993. In those years, approximately one fourth of the disability affecting the neck and back would have occurred.
…"
22. In his report of 13 May 2003 Dr Evans said:
'At Mr Davies' medical board examination on 17 October 1986 he was considered to be "fit everywhere", i.e. able to act as a fighting soldier in a theatre of war. He then had a medical board examination on 16 August 1989 and was noted to have a worsening of cervical and lumbar pain., atypical chest pain, nasal obstruction and snoring and right knee pain. Thus, on 16 august 1989 his fitness was reduced from fit everywhere to CZE, which I understand means home duties only, and he was not expected to carry out push-ups. From a legal point of view he was thus presumably fit everywhere until August 1989. From a medical point of view it is unclear when he ceased to be fit everywhere.
The symptoms had fluctuated over the years until 1989, showing that the problem had a capacity to ameliorate. It was thus not permanent, at least legally, until 16 August 1989.
I note from Mr Newell's letter that Mr Davies played regimental football until 1989."
23. In his oral evidence to the Tribunal Dr Evans said that plain x-rays taken in 1981, 1982 and 1985 and 1992 did not show any degenerative changes of the L5/S1 level but an x-ray in October 1998 did show such changes. He agreed that degeneration works so that gradually discs become less hydrated and gradually the vertebral space narrows over time. He stressed that it can only be hypothesis that it was the L5/S1 disc at the root of the Applicant's problems in 1980 because there is no evidence of that. He stated, however, that it is more likely to be the L5/S1 disc. Dr Evans also hypothesised that the cause of the Applicant's neck pain is and has always been the C5/6 segment of his spine but did so on a less confident basis than in relation to his hypothesis concerning the Applicant's back.
24. Dr Evans agreed that the history he obtained from the Applicant did not include any frank trauma after 1988 and agreed that the Applicant had initial traumas in the early 1980’s that progressed in a well recognised pattern of development.
25. In re-examination Dr Evans said that if the Applicant's neck and back pain was described as a "flare up" of pain he would be inclined to regard that as a temporary worsening. He also considered that, if the Applicant were playing squash regularly at the time of the "flare up" he would regard the "flare up" as being even more of a temporary nature. He agreed that if the Applicant, at the time of the "flare up" had passed a physical test involving jogging 5 miles, doing 80 sit ups and 20 push ups, that supports the "flair up" being temporary.
26. Dr Philippa Harvey-Sutton, Consultant Occupational Physician, in her report dated 27 November 2000, summarised the Applicant's history and condition as follows:
"Mr Davies is a 46-year old former soldier who initially worked for some 10 years in heavy labouring positions (apart from an 18 months period as an insurance salesman) before joining the army and then served some 13/14 years in the army. He appears to have performed full duties, with intermittent restrictions and from 1987 when he was placed on permanent restrictions, PT own pace, no lifting, no bending and no longer to play contact sport.
He described having pains in the neck and lower back and knees since the early 1980s and said that he has seen many doctors including specialists."
27. Dr Harvey-Sutton diagnosed cervical and lumbar spondylosis and early bilateral osteoarthritis.
28. Dr Harvey-Sutton said:
"I note that Mr Davies said he was downgraded in 1987 - "no PT, no bending and no lifting". Furthermore I note in the records more proximate to the date, namely 20th November 1992, of Dr Drew's report to Isenberg Spedding and Player, there is no reference to further injuries post 1988."
29. In oral evidence to the Tribunal Dr Harvey-Sutton said that she considered that the Applicant's conditions of cervical and lumbar spondylosis became permanent in 1980/1981. She also noted that the Applicant had been granted a Veterans' Affairs pension on 30 per cent in respect of those conditions from 1983. She said that she considered there has been no material change in the pathology of those conditions since 1 December 1988.
30. In cross-examination Dr Harvey-Sutton explained that she reached her conclusion that there has been no change in the Applicant's pathology since 1 December 1988 on the basis that there is no evidence of any new injury after that date. She said that she based that conclusion on the history given to her by the Applicant.
31. Dr Harvey-Sutton said that the date on which the Applicant had been placed on permanent restrictions would be one of the factors on which she would place a lot of weight in deciding when the Applicant's conditions became permanent, depending on the context. In this regard she referred to the range of duties undertaken by the Applicant and the effect of the restrictions on that range of duties and also to other factors such as the Applicant's qualification for pension in 1983. In relation to that qualification for pension Dr Harvey-Sutton conceded that she had not seen any of the assessment material in relation to the granting of that pension. However, she noted that pensions granted under the Veterans' Entitlement Act are for permanent impairments.
32. In cross-examination Dr Harvey-Sutton stated that a person can be qualified as FE with permanent impairments.
33. Dr Harvey-Sutton observed of the Medical Board examinations of the Applicant in October 1986 and in August 1989 that they both stated that the Applicant had cervical spondylosis and lumbar spondylosis. While she conceded that the 1986 Medical Board report assessed the Applicant at a higher level of fitness than did the 1989 Medical Board report, she noted that in her experience, there is often a substantial delay between the development or worsening of a condition and the relevant Medical Board process. By way of example she noted that because a Medical Board assessment was done in 1989 does not mean that the subject condition had not been present since February 1988.
34. Dr Harvey-Sutton conceded that she placed a great deal of weight on the time at which the Applicant ceased to play football, given the roughness and physicality of the sport.
35. Exhibit A3 is a staff-in-confidence report on the Applicant, which recommends his promotion to the rank of Corporal. The report notes that the Applicant qualified in June 1988 for a physical training test with a C pass.
36. Exhibit A4 is another staff-in-confidence report on the Applicant which contains a recommendation for promotion to the rank of Sergeant and notes that he qualified in a physical training test on 1 March 1990 with a pass.
37. Exhibit A5 is a letter from Dr C Luke dated 4 October 1989, which notes that the Applicant is receiving a 30 per cent disability pension from Veterans' Affairs for cervical and lumbar spondylosis, that he recurrently suffers with low back pain and headaches for which he occasionally requires medication and/or physical treatment. The letter goes on to note that the Applicant recently injured both his neck and back again and has had excellent relief from chiropractic treatment.
38. Exhibit A6 is a bundle of medical in confidence and other medical reports concerning the Applicant throughout 1987.
39. Exhibit A7 is a bundle of Medical Board examination records spanning 1979 to 1992. Notably in March 1982 the Medical Board changed the Applicant's assessment from FE (fit everywhere) to CZE (combat zone exempt) and noted chronic low back pain from lifting a keg in 1980 with limitation of flexion and the restriction of no heavy lifting and light duties only. In June 1982 the Applicant was assessed following a Medical Board examination as FE and an improvement in the Applicant's lower back was noted. In August 1984 the Applicant was assessed again as FE and it was noted that the Applicant still complains of episodes of back and neck pain. In July 1985 the Applicant was assessed as CZE and the Medical Board examination record notes:
"…
Recurrent neck and low back pain following a lifting injury to the back four years ago. Spinal movements slightly restricted, with discomfort on straight leg raising at 90 degrees bilaterally…"
The record also notes a diagnosis of cervical and lumbar spondylosis. In October 1986 the Applicant was assessed by the Medical Board as FE and the diagnosis of cervical and lumbar spondylosis was repeated. The Medical Board record notes a flare-up of cervical and lumbar pain in October 1986 requiring physio and Naprosyn and since then mild intermittent neck and low back pain usually with doing sit-ups and unable to do the new sit-ups. The record notes the Applicant as being physical training test exempt and imposes a restriction of "no sit-ups permanently". In August 1989 the Applicant was re-assessed by the Medical Board as CZE and the diagnosis of cervical and lumbar spondylosis was made again. In June 1991 the Applicant was assessed as being below medical standard and restrictions of no physical training test, heavy lifting or sit-ups are imposed. Cervical spondylosis and lumbar spondylosis were diagnosed and a restriction of forward flexion was noted. In September 1991 the Applicant was re-assessed as CZE and again the record notes cervical and lumbar spondylosis and notes that his neck movements are quite good, that he has some lumbar stiffness but can lift stores bending and picking up. The record also noted that the Applicant can run 6.8 km and does all physical training but has trouble with sit-ups.
40. In August 1992 the Applicant was assessed by the Medical Board as below medical standard, having a long history of cervical and lumbar spondylosis, which is worse and in need of further restrictions. In December 1992 the Medical Board again assessed the Applicant as below medical standard and as having chronic low back pain since 1981 and on examination being tender in the lumbar sacral area with a limited range of movement and as having chronic neck pain and associated headaches.
41. Exhibit R1 is an excerpt from the clinical notes of Dr Lose and in particular an entry dated 13 July 1995, which notes the Applicant as having suffered from left sciatica since 1982. Exhibit R2 is identical to the October 1986 record of a Medical Board examination contained in the bundle of documents in Exhibit A7. Exhibit R3 is a clearer copy of Exhibit R2. Exhibit R4 is a medical attendance and treatment report dated 10 February 1988, which notes:
"Flare-up of neck and low back pain - 1 week - apart from playing squash more regularly, he denies any heavy lifting or unusual forces to cause exacerbation of his cervical and lumbar spondylosis. No Help with Deep heat, Aspirin, Panadol.
O/E talks a lot.
Neck - tender, C5-6 spinous process with pain elicited there with extension/vofn/side to side movts - good ROM in spite of this.
Lumbar - tender L3-5 spinos processes and over l s1 joint reflexes in some pain with left SLR Right 90 degrees Left - 80 degrees. No pain with sciatic stretch.
Overweight and longstanding history of spondylosis. ? appropriate to be FE. Rx Naprosyn …physio. R/V"
The report further indicated that the Applicant was fit for full duty.
42. Exhibit R5 is a patient referral and report with entries dating from 10 February 1988 to 17 February 1988. The referring doctor’s notes say:
"Long-standing history of cervical and lumbar spondylosis. Recent flare-up with C6 and L3 to 5 spinus process. Tender ++ with some painful movements. No sciatic pain."
43. The specialist’s notes are somewhat difficult to decipher but on 10 February 1988 the Applicant's lumbar spine is noted as having half range of movement on flexion with sharp left-sided pain and extension being a quarter range of movement with sharp left-sided pain. The Applicant's cervical spine is noted as producing pain across a range of movements. On 12 February 1998 the notes record that "neck and back much better yesterday" and notes no pain again today. On 15 February 1988 the notes record that the Applicant has sharp back pain, which improves with medication but returns with work and driving. The entry for 17 February 1988 is indecipherable.
44. Document T5 is a patient referral and report dated 14 May 1982 in which it is noted that the Applicant has had persistent symptoms related to his spine over the last several years, having suffered a strain to his lumbar sacral spine and recurrent aching of his cervical spine. The report notes that he has had numerous specialist consultations. The diagnosis made is chronic low back pain.
45. Document T7 is a record of a medical attendance dated 30 August 1982, which records a two-year history of chronic low back pain and a long history of cervical pain.
46. Documents T9 and T10 are dated 3 September 1982 and are records of medical attendance by the Applicant in which he continues to complain of low back pain. Documents T13 and T14, dated February 1983 are medical attendance reports which note, in addition to treatment for a scalp laceration after a fight, the Applicant’s complaint of neck pain and low back pain. Document T15 dated 6 May 1983, a patient referral and report, notes the Applicant complaining of low back pain and of having "had many episodes of low back pain in past". Document T18 is an inpatient summary dated July 1983, which notes a diagnosis of minor back sprain with functional overlay and notes the Applicant having suffered a persistent low back pain with a long history of orthopaedic consultation in the past. The summary notes that the Applicant's longest period of freedom from back pain occurred in June 1982. A medical attendance and treatment report dated 7 July 1983, T19, notes a manipulation under anaesthetic on 5 June 1983 in respect of the Applicant's lumbar and cervical spine and places him on light duties with no heavy lifting for two weeks. Documents T20, T21, T22, T23, T24, T25 are medical attendance reports spanning up to May 1984 and note continuing back pain on and off.
47. Document T29 is the reasons for decisions of the Repatriation Commission dated 30 October 1984 by which the Repatriation Commission accepted the Applicant's application for incapacity resulting from cervical spondylosis, lumbar spondylosis and bilateral sensory neural deafness. In that statement of reasons the Repatriation Commission delegate noted:
"…
In a report dated 25 February 1984 the orthopaedic surgeon stated that physical examination disclosed some restriction of rotation of cervical spine and tenderness of the lumbosacral junction…"
48. Document T30 is a medical attendance report dated 27 November 1984, which notes further back injury when the Applicant jumped off a truck and also notes lower lumbar pain. Document T31 is a medical attendance report dated 6 December 1984, which notes that the Applicant's back is causing him considerable discomfort. Document T35 dated 15 March 1985 is a medical attendance report, which notes the recurrence of an old back injury after being pushed down the stairs. The report notes some restriction in spinal movements and straight leg raising. Document T36, dated 21 March 1985 notes that the Applicant was admitted to hospital for acute low back pain. Document T38, dated 1 April 1985 shows the Applicant continuing to complain of back pain. Document T42 is a medical attendance report dated 11 April 1985 and notes that the Applicant is still complaining of low back pain, neck pain and tension headaches and that he has apparent back stiffness and restricted gait.
Submissions
49. Mr Newell, on behalf of the Applicant, submitted that, while the Applicant concedes that he had problems with his back since the early 1980’s, the issue for the Tribunal to consider is not whether there was some back pathology but rather whether there was an impairment and whether that impairment may be properly said to have been permanent at the material date. He further submitted that the question of whether there was an impairment depends on an analysis of actual restrictions as they affect the Applicant and the question of whether that impairment was permanent depends on whether the impairment is likely to persist or to continue indefinitely.
50. Mr Newell submitted that the documentation of the Applicant’s condition over the 1980’s shows a capacity for the Applicant to return to an asymptomatic state after flare ups and aggravations. He cited the report of Dr Evans of 13 May 2003 in this respect.
51. Mr Newell referred the Tribunal to the Medical Board examinations of 16 August 1989 and 16 October 1986 (Exhibit A7), noting the classification of CZE in 1986 and the classification of FE in 1989. He also referred the Tribunal to the clinical note of Dr Lose (Exhibit R1) which refers, in February 1988, to a flare up of the Applicant’s lower back concurrent with an increase in playing squash. He also referred to the Applicant’s promotion, in August 1988, to the rank of Bombadier after completion in June of a physical training test involving jogging 5 kilometres, doing 80 situps and 20 chin ups. He noted that these events occurred just prior to the material date, 1 December 1988 and submitted that the Tribunal should consider those events to be more proximate to the material date than the Applicant’s subsequent downgrading in August 1989.
52. Mr Newell submitted that the Tribunal can draw an inference from the Medical Board documentation from 1989 onwards that the capacity of the Applicant’s condition to ameliorate began to diminish from that time and the condition began to stabilise and thus to become permanent. He submitted that the imposition of “no sit ups permanently” in August 1989 points particularly to permanence from that date.
53. Mr Newell also submitted that Dr Harvey-Sutton’s evidence was that the playing of football was a matter that would seriously affect an assessment by her of permanence and he pointed to the Applicant’s evidence that he played football throughout 1988.
54. Mr Elliott, for the Respondent, referred the Tribunal to a number of decisions of the Federal Court which considered the operation of section 124(3) of the Act including Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11, Brennan v Comcare (1994) 50 FCR 555, Comcare v Levett (1995) 60 FCR 14, Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390 and Department of Defence v West (1998) 85 FCR 491. In addition, he referred the Tribunal to the decision of the Federal Court in Comcare v Maida (2002) 36 AAR 69 in which those authorities are discussed.
55. Mr Elliott submitted on the basis of the above authorities that no compensation is available under the Act for impairments that occurred before 1 December 1988 and there is no compensation available for impairments arising after that date unless there has been a qualitatively and quantitatively different impairment to the impairment arising prior to that date. Mr Elliott further submitted that this requires a change to the underlying pathology and physiological state of the condition and is not simply a matter of looking to see whether the level of impairment under the tables in the Guide to the Assessment of Permanent Impairment has risen. He submitted that there is no evidence before the Tribunal that the underlying pathology of the Applicant’s condition has changed and there is no evidence of any new injury.
56. Mr Elliott submitted that there is overwhelming evidence that the Applicant had a permanent impairment to some degree prior to 1 December 1988 and pointed to the 7 year history of injury, complaint and treatment and the Applicant’s evidence of continuous pain. He also pointed to the evidence of Dr Evans to the effect that any deterioration in the Applicant’s condition was consistent with the path of the degenerative process and to Dr Harvey-Sutton’s evidence that the Applicant’s condition was established in the early 1980’s.
Consideration
57. As submitted by Mr Elliott, the decision of the Federal Court in Maida (supra) provides a helpful discussion of the cases on the interplay between sections 24 and 124 of the Act. That discussion culminates, after consideration of the decisions in Blackman (supra), Brennan (supra), Levett (supra) and Hoyle (supra), in a discussion of the Full Federal Court’s decision in West (supra). Mansfield J said, in Maida, quoting Merkel J in West:
“23 Merkel J at 664 pointed out that the agreement of the parties did not contain sufficient detail about the nature of extent of the impairment or the patho-physiological condition that caused the initial permanent impairment and its subsequent deterioration or worsening. He said that:
"... In my view a change of the underlying patho-physiological condition or a significant worsening of an impairment which is likely to have come about as a result of that change might be relevant factors in determining whether the permanent impairment that the respondent suffered at the date of the hearing was the same permanent impairment as that which he had suffered as at or prior to 1 December 1988."
His Honour described the cases to which reference has been made above, and then concluded at 668:
"The present state of the authorities can be summarised as follows:
· the gradual worsening of a permanent impairment in accordance with its natural progress does not constitute a series of new impairments each giving rise to a separate liability to pay compensation: see Blackman at 14 and Brennan at FCR 570-1 per Gummow J; cf Brennan at FCR 558-9 per Burchett J;
· the observation in Blackman at 14 that a permanent impairment which worsens significantly or is such that the variation between it and the earlier impairment is substantial does not result in a new permanent impairment is to be approached with `some caution': see Brennan at FCR 558-9 and 560-1 per Burchett J and at 571 per Gummow J and Levett at FCR 20."
24 His Honour was therefore of the view that the early authorities left unresolved the question whether a deterioration in a permanent impairment which existed at 1 December 1988 is capable of constituting a new permanent impairment. His Honour also observed that the caution expressed in relation to Blackman by Burchett and Gummow JJ in Brennan and adopted by the Full Court in Levett suggested a reluctance to accept that a substantial variation, or a significant deterioration, in a person's permanent impairment is incapable of constituting a permanent impairment which is different from that which existed prior to the variation or deterioration. It is that question to which his Honour's reasons are then directed.
25 His Honour's conclusion is best encapsulated in a passage at 669 where his Honour said:
"A loss of the entitlement conferred under ss 24 and 25 by reason of s 124(3) only occurs when the permanent impairment the subject of the claim is the permanent impairment that the employee suffered as at 1 December 1988. On my reasoning, and that of Burchett J in Brennan, where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it is compensable by a lump sum payment under ss 24 and 25. That conclusion is consistent with the language used and with the statutory policy to be discerned from ss 24, 25 and 124 of providing benefits to workers in respect of a further permanent impairment that occurs after the commencing day irrespective of whether the injury that resulted in the impairment occurred before or after the commencing day. It also avoids capricious and arbitrary outcomes under workers' compensation legislation, which is of a remedial nature and should be construed liberally: see Brennan at FCR 559 and the cases there referred to."
However, the nature and extent of the loss of use or malfunction is critical to determining whether an impairment has changed to such an extent that it is a further or new impairment. Merkel J accepted that gradual worsening does not result in a series of separate or further impairments. Questions of fact and degree will be involved in making a qualitative assessment as to whether, in a particular case, the permanent impairment existing as at 1 December 1988 has deteriorated to an extent that it is properly to be characterised as a further or different impairment from that which existed at the commencement date.
26 In West, Heerey J reached the same conclusion, but for somewhat different reasons. His Honour pointed out that an impairment is something which commences at a particular point in time, and thus "occurs" and being permanent then continues. Consequently, as the respondent in that case had a permanent impairment by reason of loss of use or damage or malfunction of his back which had occurred before 1 December 1988, he had no further entitlement to a lump sum because the degree of that impairment had increased subsequent to that date. His Honour remarked at 659:
"There is no question of any post-1988 `injury' being relevant to his present condition. There is no suggestion in the evidence of aggravation (including acceleration or recurrence). To be relevant for compensation purposes such aggravation would have had to arise out of or in the course of his employment by the Commonwealth."
His Honour further pointed out that the agreed facts did not suggest that since 1 December 1988 the respondent had a new permanent impairment, but simply that in ordinary parlance he has had for many years a bad back which since 1988 has got worse. The permanent impairment which existed at 1 December 1988 continued, and it could not be said that the respondent now has two impairments in relation to his back. His Honour reserved the case where an employee's condition becomes after 1988 so different in its pathology or in its effect on the employee that an affirmative answer can be given to the question that there was a new impairment which occurred after 1988, but the agreed facts in that case did not support any such conclusion. The difference between the approach of Heerey J and of Merkel J (with whom O'Connor J agreed) may simply be a matter of degree but it is not necessary to address it in this instance. “
27 In the light of that consideration, in my view it was appropriate for the Tribunal to follow the approach outlined by Merkel J in West. The issue is whether it did so.
28 In effect, in this matter, the applicant puts the following propositions which, in my view, correctly summarise the state of the law:
"20.1 The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
20.2 If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
20.3 A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment."
58. With respect, it is the principles set out in West, as extracted and discussed by Mansfield J in Maida, that are appropriate to be applied by the Tribunal in this case.
59. It was contended on behalf of the Applicant that he had no permanent impairment prior to 1 December 1988. The word "impairment" is defined in s 4 of the Act as follows:
" impairment' means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function."
60. The word "permanent" is defined in section 4 of the Act to mean “likely to continue indefinitely”.
61. There is no dispute that the Applicant suffered from an impairment of his neck and back from the early 1980’s. The question of whether that impairment was permanent or likely to continue is answered, in the Tribunal’s view, by the Applicant’s evidence that he has had “problems” and pain with his neck and back since the early 1980’s, by Dr Harvey-Sutton’s evidence that the impairment has been permanent since the early 1980’s and by the frequent and broadly consistent record of complaint and diagnosis of lumbar and cervical spondylosis in medical and Medical Board examinations reported from 1981 to 1993.
62. The Tribunal is mindful of the evidence of Dr Evans that the Applicant’s symptoms had fluctuated over the years showing a capacity to ameliorate and that the impairment was thus not permanent “at least not legally” until 1989. The Tribunal is also mindful of the evidence of variations throughout the 1980’s in the Applicant’s fitness classifications. However, notwithstanding those fluctuations, it could not be said that the impairment was not likely to continue. In fact it did continue, to a greater or lesser extent, throughout the 1980’s to the present day. In a number of the medical records and reports from the 1980’s before the Tribunal the Applicant’s back and neck pain is described variously as “chronic”, “persistent” or “recurring”.
63. The Tribunal is also mindful that the Applicant played regimental football until 1989 and passed a demanding physical training test in 1988. However, the Tribunal also notes the Applicant’s evidence that he “put up with” the pain he experienced in physical training tests and, in 1987, was taking 10 – 12 Panadol per day to cope with his pain. In addition, the Tribunal notes that the Applicant passed a similar physical training test in 1990 when he was promoted to the rank of Sergeant (Exhibit A4). This tends to undermine the Applicant’s argument that his classification in August 1989 as CZE indicated the point of permanence of his condition. On this basis, the Tribunal concludes that the Applicant’s impairment was permanent prior to 1 December 1988.
64. The next matter for the Tribunal to consider is whether the Applicant suffered a new or different permanent impairment after 1 December 1988 or whether he simply continued to suffer the permanent impairment already suffered by him as at 1 December 1988. There is no evidence before the Tribunal of any further injury after that date. It follows that this question requires consideration of whether, post 1 December 1988, the Applicant’s permanent impairment changed such that “quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date” (West).
65. The medical evidence before the Tribunal shows no change in the patho-physiological condition causing the Applicant’s impairment. The Applicant’s evidence was that the frequency and severity of his pain had increased. Dr Evans’ evidence was that the development of the Applicant’s condition had followed a well recognised pattern of progression over time, notwithstanding his view that it remained a temporary condition throughout the 1980’s. The diagnosis of the Applicant’s condition, by various Medical Boards and medical practitioners, has been consistent throughout the 1980’s and thereafter. While it may be that the “quantitative” aspects of the Applicant’s condition and impairment have changed since 1 December 1988, there is no evidence to suggest that there has been a qualitative change.
66. It follows that the Applicant has sustained no new impairment since 1 December 1988 and, pursuant to section 124 of the Act, is not entitled to compensation for permanent impairment.
Decision
67. The decision under review is affirmed.
I certify that the 126 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: .......................................................................................
Niamh Kinchin AssociateDate/s of Hearing 24 February 2003, 13 May 2003,
Date of Decision 5 August 2003
Counsel for the Applicant Mr Newell
Solicitor for the Applicant
Counsel for the Respondent Nr Elliott
Solicitor for the Respondent
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