De Bruyn and Comcare
[2004] AATA 596
•11 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 596
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/473
GENERAL ADMINISTRATIVE DIVISION ) Re IAN DE BRUYN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member;
Dr M E C Thorpe, MemberDate11 June 2004
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, the Tribunal decides that:
(i) The Respondent is liable to pay Mr De Bruyn compensation for permanent impairment pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 for a permanent impairment of 10 per cent under Table 9.6 of the "Guide to the Assessment of the Degree of Permanent Impairment";
(ii) The Respondent is liable to pay Mr De Bruyn compensation for non-economic loss pursuant to section 27 of the Safety, Rehabilitation and Compensation Act 1988 and the calculation of compensation for non-economic loss is remitted to the Respondent;
(iii) The Respondent is liable to pay the Applicant's reasonable legal costs as taxed or agreed.
..............................................
Ms S M Bullock
Presiding Member
WORKERS COMPENSATION – Permanent Impairment – 1971 Act – 1988 Act
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 124
Brennan v Comcare (1994) 50 FCR 555
Comcare v Levett (1995) 60 FCR 14
REASONS FOR DECISION
11 June 2004 Ms S M Bullock, Senior Member;
Dr M E C Thorpe, Member1.Mr Ian De Bruyn has made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) of a reviewable decision made on 8 February 2002 (T18), which affirmed a determination made on 10 December 2001 (T16), that as Mr De Bruyn’s permanent impairment occurred prior to 1 December 1988, the Compensation (Commonwealth Employees) Act 1971 (“the 1971 Act”) applied. The 1971 Act did not provide for the payment of a lump sum permanent impairment in relation to, in this case, Mr De Bruyn’s back injury. It should be noted that on 29 September 1988, the Military Compensation accepted liability to pay compensation in relation to Mr De Bruyn’s back condition, which he contended arose on 1 June 1987, when he suffered trauma to his back as a result of a hard parachute landing.
2.A Hearing was held on 16 February 2004 and resumed on 17 and 18 February 2004 and on 31 May 2004. Mr De Bruyn was represented by Mr C Jackson of Counsel and the Respondent, Comcare, was represented by Mr G Johnson of Counsel. Oral evidence was provided by Mr De Bruyn, telephone evidence was also provided on two occasions by Dr J Davis, Occupational Physician. Dr N McGill, Consultant Rheumatologist, also provided evidence at Hearing. It was during Dr McGill’s evidence, where he changed his assessment of permanent impairment from 10 per cent to five per cent under Table 9.6 of the “Guide to the Assessment of the Degree of Permanent Impairment” (“the Guide”). Dr Davis was recalled to provide further evidence in relation to Dr McGill’s reassessment of permanent impairment. Documents were taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-T18) and a number of exhibits which are listed in Schedule 1 to this Decision.
issues
3.Mr De Bruyn is seeking a lump sum compensation payment. In determining whether or not the Respondent is liable to pay lump sum compensation, a number of issues must be determined.
(i) When did Mr De Bruyn’s lower back condition become permanent?
(ii) What is the impairment rating of Mr De Bruyn’s lower back condition?
legislation
4.If Mr De Bruyn’s back condition became permanent before 1 December 1988, then under section 124 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”), there was no entitlement to permanent impairment or non-economic loss under sections 24 and 27 of the 1988 Act as the 1971 Act applied. Of relevance is subsection 124(3) of the 1988 Act which states:
“
(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.”
5.If the lower back impairment became permanent after 1 December 1988, then permanent impairment and non-economic loss can be assessed under the provisions of the 1988 Act which are sections 24 and 27. Section 24 of the 1988 Act states:
“
(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 an 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.”
6.Section 27 of the 1988 Act deals with compensation for non-economic loss which is payable when an injury to an employee results in permanent impairment and compensation is payable in respect of the injury under section 24 of the Act. A specific formula is detailed within section 27 for calculation of the amount of compensation payable in relation to non-economic loss.
background
7.Mr De Bruyn enlisted in the Australian Army (“the Army”) on 14 June 1984. On 1 June 1987, he sustained an injury during a parachute exercise. The injury is recorded in a Report of Injury dated 11 December 1987 (T4). Mr De Bruyn claimed and was granted compensation for this injury on 29 September 1988 for aggravated lower lumbar injury (T7).
8.On 17 April 2001, Mr De Bruyn lodged an application for lump sum compensation (T12). A report was provided in support of this application by Dr R L Thomson, Consultant Surgeon, dated 6 February 2001 (T11). It is the Respondent’s decision on reconsideration, dated 8 February 2002, that is the subject of this application for review (T18).
evidence of mr ian De Bruyn
9.Before 1987, Mr De Bruyn stated that as an engineer, he undertook tasks which caused him to temporarily suffer from a sore back, for example when lifting heavy loads. He may have reported back pain for three weeks in 1985, after jumping out of the back of a truck, but could not specifically recall that incident when it was raised with him. Mr De Bruyn remembers “tweaking” in his back as well as experiencing heavy cuts, knocks and bruises as a result of his work in the army.
10.Mr De Bruyn described the parachute jump, being the second or third of the day on 1 June 1987. Mr De Bruyn admitted to his memory being “blurry” in relation to the incident. Mr De Bruyn told the Tribunal that he hit a tree stump when he landed. The incident occurred in the context of high winds blowing his parachute off course. Mr De Bruyn recalls experiencing a piercing pain in his lower back upon landing. He was dazed, did not have any idea where he was and believes that he lapsed in and out of consciousness. Mr De Bruyn was put on a “Jordan” frame and taken to HMAS Nowra. Mr De Bruyn also recalls being unable to move one of his legs. He recalls being X-rayed and having his trousers cut off. Mr De Bruyn was told he had suffered a spinal injury and inflammation of the spine. By the next morning, he was able to stand up. After discharge from hospital, Mr De Bruyn went back to the “Parachute Training School”. When he tried to put on his parachute, he experienced pain in the middle of his spine, above the belt line, at the midline thoracolumbar junction. Mr De Bruyn described falling to his knees at that point. He was referred for medical opinion and told not to undertake any further parachute jumps. Mr De Bruyn underwent physiotherapy for a period of time and gradually the pain lessened and his fitness returned. Mr De Bruyn stated that after the 1987 accident, he could not do anything for about nine months when he was off his normal duties. He would sit in an office undertaking administrative duties and attended physiotherapy intermittently.
11.By the end of 1987, Mr De Bruyn was back at work, but not undertaking duties such as bridge building or heavy lifting. In 1988, Mr De Bruyn changed his classification from engineering to being a driver. He still was required to undertake battle fitness training and was back to full normal duties by the beginning of 1989. Mr De Bruyn also recommenced playing football. By 1989, Mr De Bruyn stated that he was undertaking all his normal duties such as combat training, building bridges, building bunkers using sandbags and dragging heavy vehicles. He was walking 40 kilometres per day with a fully laden pack. Also in 1989, Mr De Bruyn was playing competition football and was selected to play representative football for his Corps and for the Army.
12.Between April and September 1989, Mr De Bruyn was posted to Namibia, passing all physical tests before and after the posting. While in Namibia, Mr De Bruyn contracted Malaria. Part of his task in Namibia involved such duties as building refugee camps and clearing landmines. While in Namibia, Mr De Bruyn lost “match fitness” and had to rebuild his level of fitness upon returning to Australia. In 1991 and 1992, Mr De Bruyn again commenced playing football as a winger or flanker. He was also still undertaking battle fitness training. Mr De Bruyn described experiencing the “odd twinge of pain” in his back when playing football or undertaking some duties. This could also involved cramping. Once when playing football he was knocked unconscious. As his match fitness returned however, the pain to his back lessened.
13.In 1993, Mr De Bruyn was promoted to the position of full Corporal. He continued with his full physical training and was fully mobile. Also in 1993, Mr De Bruyn underwent a medical which he passed, as assessment for possible deployment to Somalia.
14.In 1994, Mr De Bruyn was posted to Papua New Guinea. Two months before undertaking that posting, he underwent the required medical and also had post Papua New Guinea medicals which he passed. During 1994, Mr De Bruyn was also cleared to recommence parachute jumping. He told the Tribunal that he was nervous and scared at first, but undertook a jump without incident. Also in 1994, Mr De Bruyn underwent basic fitness training and on a test, which required the completion of various exercises and a five kilometre run, he got two and a half kilometres into the run when the muscles in his back started hurting. Mr De Bruyn described lying on the ground and trying to stretch. He stated that that action provided relief. Mr De Bruyn continued and completed the run but it happened again and so he tried to walk. Mr De Bruyn described the pain as “pulsating”. The pain at that time was not in one central spot but moved around. Mr De Bruyn stated that the pain seemed to move when he moved. Mr De Bruyn further described his muscles as being very tight. The pain occurred above his belt line laterally around the paravertebral muscles radiating to above the belt line. Mr De Bruyn told his supervisor of his difficulty, who advised him to report to a Dr which he did at the Regimental Aid Post (RAP). Mr De Bruyn was provided by the Dr with anti-inflammatory medication, pain killers and “Panadol”.
15.Mr De Bruyn “took it relatively easy” until Christmas 1994 and in any event, because of the time of year, his duties were winding down. Mr De Bruyn stated that he exercised by walking but felt “pressure in his back”. The pain eventually resolved. Mr De Bruyn attempted another fitness test in about January or February 1995 and failed it. He then failed a second test.
16.Mr De Bruyn described an incident four or five days after his last fitness test in 1995, when he was crouching down to load a video. Upon rising to stand up, Mr De Bruyn stated that his back “went”. Mr De Bruyn described feeling tremendous pain in the whole of the lower back. The pain was in the same spot as in 1994 when he was on the run, and whilst similar, the intensity was more severe. Mr De Bruyn stated that he had never felt pain like that before. It was a pulsating pain like a heart beat and he felt it creeping down his legs. He was in agony. It felt to Mr De Bruyn like two vertical muscles were trying to squeeze his vertebra together. He felt the back muscles were restricted for a few months after that 1995 incident. Mr De Bruyn made it back to his room. On Monday morning, he attended a local medical centre with the assistance of a friend. He was recommended and undertook more physiotherapy and underwent radiological studies of X-ray and an MRI scan. Mr De Bruyn was given two weeks sick leave and told to stay in bed. Mr De Bruyn stated that initially he could not put on his socks, shoes and underpants but gradually obtained greater mobility following physiotherapy and exercise. Mr De Bruyn was advised medically to do things at his own pace and gradually returned to work by the end 1995.
17.Mr De Bruyn noted that in 1995, he barely passed the fitness test. At the time of the Hearing, he was not up to the fitness he had completed prior to the parachuting accident. The day before the Hearing, Mr De Bruyn had mowed the lawn and his back was painful. He told the Tribunal that he cannot use the “whipper snipper” on the same day as mowing the lawn. When in pain, Mr De Bruyn takes Panadol and the amount he consumes depends on his level of activity. Mr De Bruyn stated that he has to pace himself. He is now unable to bend and touch his toes, he can barely reach his ankles, he stated. Mr De Bruyn has gradually built up his fitness, but if he undertakes any activity which is strenuous, his mobility reduces and he experiences pain. Mrs De Bruyn assists him by massaging his back and he attends a chiropractor. Mr De Bruyn noted that his back now flares up more frequently than in the past.
18.Mr De Bruyn works now as an engineer in the bomb disposal unit. He has had counter terrorist service opportunities, but was unable to pass the requisite test in 2001. Mr De Bruyn’s current position is as a Corporal, but at the time of the Hearing, he was acting as Operation Line Officer. Mr De Bruyn stated that he is trying to stay in the Army at his medical classification and he could be considered for overseas service. In his substantive position as a driver, Mr De Bruyn completes logistical and planning duties.
19.Mr De Bruyn noted that the pain in 1987 seemed different to the pain in 1995. The 1987 pain was direct over the spine and did not move, whereas the 1995 pain was more severe and moved to different spots.
20.Mr De Bruyn was asked about his leg pain, which is the subject of another claim for compensation and not before this Tribunal. Mr De Bruyn stated that he told Dr Thomson about his back and leg problems. Mr De Bruyn agreed that he could not do the 15 kilometre walk because of his legs and not because of his back condition. The leg condition is a compartment condition. He had also told Dr T Anderson, Occupational Physician, about that condition.
21.Mr De Bruyn stated that cold weather makes his back worse. He takes longer to do stretches and warm ups. Because of his leg problem, he can no longer play touch football or rugby. Running or high activity games requiring agility are difficult for him. Upon occasions, he has to ask other people to assist him to stretch. He tries to be protective of his back when undertaking activity. If he moves suddenly or undertakes an unusual movement, he experiences back pain or cramping. Mr De Bruyn stated that he has “good and bad days”.
evidence of dr j davis, occupational physician
22.The Tribunal had the benefit of Dr Davis’ report dated 14 July 2003 (Exhibit A1) and evidence provided to the Tribunal by Dr Davis by telephone.
23.Dr Davis noted that Mr De Bruyn’s lower back injury, suffered in 1987, occurred as a result of the parachute jump. When Mr De Bruyn was treated with physiotherapy, rest, non-steroidal anti-inflammatories and analgesic medication. Dr Davis reported thereafter that Mr De Bruyn experienced occasional back spasm over the years until 1994. Dr Davis noted that Mr De Bruyn was forced to leave a run during a fitness test. Again, Mr De Bruyn’s back settled but there was a further incident in 1995, when Mr De Bruyn stood after being flexed loading a video, resulting in sudden and severe pain and an inability to straighten his back. On that occasion, Dr Davis noted that Mr De Bruyn had three weeks off work. Dr Davis also described in June 1996 an occurrence of bilateral lower leg pain and a diagnosis of bilateral compartment syndrome was made.
24.Dr Davis concluded, in relation to Mr De Bruyn’s back condition, that he is suffering a lumbar disc injury where there is an annular tear “that is at the outer half or third of the annulus which contains the nociceptive afferent pain fibres”. Dr Davis opined that once there is damage to this area, there is increased sensitivity to further stimulation by mechanical or chemical stimuli.
25.Dr Davis did not believe that the 1987 injury could be considered to have stabilised until after 1 December 1988. There is a direct causal link, he further opined, between Mr De Bruyn’s impairment and his employment. Dr Davis opined that the lower back injury represented a ten per cent permanent impairment under Table 9.6 of the Guide to reflect loss of less than half the normal range of movement.
26.At Hearing, Dr Davis opined that the 1987 incident was causally related to Mr De Bruyn’s back problem. In relation to Mr De Bruyn describing different types of back pain in 1987 as compared to 1995, Dr Davis stated that sharp pain was consistent with the parachute jumping injury. The more diffuse pain could be indicative of soft tissue pain and the pain in 1995 radiating to the left buttock was causally related to the 1987 back injury. Also, Mr De Bruyn’s description to Dr Davis of pain in 1995 as being a spasm and an inability to straighten is also consistent with the 1987 injury and perhaps an exacerbation. Dr Davis noted that the MRI scan of 16 March 1995, reporting L5/S1 disc protrusion, could reflect the 1985 spasm pain radiating to the left buttock. Disc protrusion is consistent with disc injury. It is probably the case, Dr Davis further opined, that the 1987 injury started all of Mr De Bruyn’s lower back problems and it has been aggravated over time. During the first 12 months after the 1987 injury, there would still be ongoing activity and typically, there would be stabilisation after about 18 months. Coming to a conclusion about when the 1987 injury became permanent requires a clinical assessment, Dr Davis further opined that one does not necessarily need an MRI, referring to Dr McGill’s report of 4 February 2003, that the MRI should suggest the clinical picture.
27.If an MRI was taken in 1987, it is Dr Davis’ view that it may not have shown an internal disc problem and it was more likely for such a problem to show up 18 months later. There is no hard and fast rule however, Dr Davis stated. Complaints of lower back symptoms from the 1 June 1987 injury are consistent with the tear of the annulus. At about 18 months, one would expect changes within the disc itself, as it became degraded. The experience of spasm over the years is a result of the annular tear. Dr Davis stated that Mr De Bruyn had the annular tear either at the time of the injury or within 18 months. The spasm experienced by Mr De Bruyn, as he reported and as is expected, would be temporary with periods of settled pain, then recurring such as Mr De Bruyn had reported in 1994 and 1995. Mr De Bruyn’s expression of symptoms over L1 was probably where the direct trauma was, but the 1995 MRI firmly established the injury as being at L5/S1. The CT scan of 1987 showed possible L1/L4 problems not L5/S1 because of his locating of his pain. In Dr Davis’ view, there are sets of pain reported by Mr De Bruyn, because one related to the direct trauma and the other related to secondary pain related to spasm.
28.In relation to Dr Davis’ assessment of Mr De Bruyn having a 10 per cent permanent impairment from Table 9.6 of the Guide, he stated that in arriving at that measurement, he took into account a number of measures such as extension and flexion, which in Mr De Bruyn’s case demonstrated poor rhythm of movement at 15 degrees, with right sided flexion being similar, although if anything showing an even more abnormal rhythm. Dr Davis noted that it would be considered that there would be a minor restriction if a patient could reach his ankle and agreed, that if that was what Mr De Bruyn reported, if that were the only measure to be taken then a five per cent impairment may be indicated. However, Dr Davis stated that he took into account other measures such as the history of the complaint, the clinical examination and the other radiological findings. Dr Davis agreed that if what Dr McGill had reported was correct on his examination, that is, straight leg raising limited to 60 degrees bilaterally because of back pain and full extension, lateral flexion and rotation of the thoraco cumulus spine but lumbar flexion restricted to 90 per cent of normal, then that could represent, if they were the only factors taken into account, a minor restriction and hence a five per cent impairment under Table 9.6 of the Guide. Dr Davis also agreed with Mr Johnson’s proposition that people can demonstrate more flexibility on one occasion than on another. On that understanding, while Mr De Bruyn may have evidenced minor restrictions of movement to Dr McGill, Dr Davis thought that the clinical examination revealed a poor rhythm movement which he considered was greater than minor. Dr Davis concluded that when one took into account Mr De Bruyn’s lateral flexion which was less than 15 degrees, the norm being 25 degrees and an extension of 20 degrees with the normal being 25 degrees then overall, the restriction experienced by Mr De Bruyn, on Dr Davis’ examination and assessment, indicated more than a minor restriction. The critical issue was the movement in the lumbar spine and while it may appear on consideration that there was only minor restriction, when the issue of the poor rhythm movement was considered in relation to the lumbar spine, the assessment became a more complete and comprehensive assessment taking into account all of the matters noted by Dr Davis. Dr Davis used standard tools which measured the lumbar spine extension and flexion, using dermatomes, Dr Davis also observed that Mr De Bruyn has hypo mobility of the lower lumbar spine when there was observation of the rhythm of movement.
evidence of dr n mcgill, consultant rheumatologist
29.Dr McGill provided a report dated 4 February 2003 (Exhibit R1) and a supplementary report dated 22 April 2003 (Exhibit R2(b)).
30.Dr McGill opined that although lumbar disc disease has been shown to be primarily constitutional, in light of Mr De Bruyn’s young age and the major nature of the 1987 injury, he believed that the primary cause of Mr De Bruyn’s L5/S1 disc degeneration was the injury in 1987. The further flare ups of back pain in subsequent years have occurred when undertaking normal activity of a type not likely to cause him damage to L5/S1 or any other lumbar disc. In his supplementary report dated 22 April 2003, Dr McGill expressed the opinion that the injury became permanent at the time of the injury in 1987 and this became clear following MRI examination performed in 1995. The date that the injury became permanent, that is, likely to continue indefinitely, was in 1987 at the time of the injury. Dr McGill’s initial report noted that the earliest time at which it could be reasonably determined that the back injury was permanent was after the 1995 MRI scan. Had an MRI been performed in the months following the June 1987 accident, Dr McGill opined that the scan would have been likely to have shown permanent impairment as a result of that injury. Dr McGill also opined in his report that Mr De Bruyn had a whole person impairment of 10 per cent of the back representing a loss of less than half the normal range of movement in Table 9.6 of the Guide.
31.At Hearing, Dr McGill noted that people’s description of pain location is unreliable and this is well known that reporting of location of pain and discomfort is not accurate. There is no other injury to the spine which could explain the clinical findings or findings of the MRI scan. Dr McGill stated that it is common to have a site and description of pain which changes, and it is consistent with the injury at L5/S1 for the pain to occur in the lower back, particularly as the muscles get tighter. There is no doubt, Dr McGill stated, that the underlying problem is not in the muscles that surround the spine but the spine itself. Muscle tension occurs and it is not a separate pathology but a reaction to the actual final pathology.
32.Dr McGill considered Mr De Bruyn to be straight forward, and honest, and for him to be out of work for six to nine months after the 1987 accident, it was most likely a significant injury. Dr McGill stated that Mr De Bruyn does not appear to exaggerate or magnify his symptoms. In terms of whether it was possible that Mr De Bruyn had two injuries, one at L1 and the other at L5/S1, Dr McGill stated that he did not think this was possible and it was certainly not possible for a disc injury to recover and thus the MRI of 1995 not recording an injury at L1 was in all probability as such because there was no injury at L1.
33.Dr McGill stated that he found it extraordinary, as opined by Dr Davis, that it would take 18 months for the results of the 1987 injury to become permanent. On a minimum it would take some months but Dr McGill later conceded that it could take a few years.
34.At Hearing, when Dr McGill considered his findings on examination, that Mr De Bruyn demonstrated a full extension, lateral flexion and rotation of the thoraco lumbar spine but with lumbar flexion restricted to 90 per cent of normal with straight leg raises limited to 60o bilaterally because of lower back pain, Dr McGill changed his assessment of impairment to that of being a minor restriction. The Tribunal notes that in relation to Dr McGill’s summary contained within his report dated 4 February 2003 (Exhibit R1), he concluded that Mr De Bruyn suffers ten per cent whole person impairment on the basis of less than half normal range of lower back movement. In summary, in relation to the impairment, Dr McGill expressed the view that five per cent was probably the correct assessment under Table 9.6 of the Guide.
evidence of dr r l thomson, consultant surgeon
35.The Tribunal had a report from Dr Thomson dated 6 February 2001 (T11). Dr Thomson examined Mr De Bruyn on 6 February 2001. Dr Thomson diagnosed chronic musculo-ligamented strain of lumbo sacral back/facet joint dysfunction with L5/S1 disc degenerative changes and chronic bilateral lateral compartment syndrome. The back problem is predominately attributable, Dr Thomson opined, to the parachute accident in 1987. Dr Thomson noted the 1995 MRI scan reporting L5/S1 disc degenerative disease which Dr Thomson reported was caused by the 1987 parachute accident. The symptoms Mr De Bruyn experienced and the MRI findings are consistent with recurrence of lumbar back strain and also the onset of severe lumbar back pain in 1995, associated with a relatively trivial incident of loading a video, and from which there was a complete symptomatic recovery. Dr Thomson noted CT scans of L1 to L4 on 4 June 1987, revealed no fractures or any other significant abnormalities and that a plain X-ray undertaken on 11 June 1987 referred to equivocal doubtful changes of a possibly intervening wedge compression of the back of the body of L1 and possible undefined fracture towards the medial end of the fourth rib.
36.Dr Thomson agreed that Mr De Bruyn is permanently unfit for physical, occupational or social/domestic activities requiring active use of the lumbar back. Mr De Bruyn would generally be fit, Dr Thomson opined, for lighter alternate duties. According to Table 9.6 of the Guide, Dr Thomson assessed Mr De Bruyn as having a 10 per cent permanent impairment of the lower back.
37.At Hearing, Dr Thomson reported that Mr De Bruyn’s lower back injury became permanent in 1995. He has remained symptomatic after that incident. Dr Thomson opined that the incident in 1995 determined whether the 1987 injury resulted in permanent impairment.
38.In relation to the MRI finding being undertaken in 1987, Dr Thomson opined that it would be different to that reported in 1995. Dr Thomson noted that the CT scan taken on 12 August 1987 showed no abnormality.
39.Dr Thomson also noted that there is not always a close correlation between radiology and disc pathology and it is well known that pathology might not show until later. This is because there is a delay between damage to the disc and alteration of the anatomy. The L5/S1 disc protrusion shown on the MRI, in Dr Thomson’s view, is a manifestation of a damaged disc and Mr De Bruyn’s complaints and symptoms are a manifestation of damage to the L5/S1 disc. Dr Thomson opined that diagnosis is a clinical and radiological exercise and the results are subservient to that.
40.Dr Thomson further opined that it was not possible to confirm that the L5/S1 disc damage happened on 1 June 1987, but it was likely that the protrusion may have occurred anytime between 1987 and 1995. After the parachute drop, Mr De Bruyn’s pain resolved. If Mr De Bruyn had had a history of intermittent pain, that would be consistent with the diagnosis of an injured disc. Periodic pain from 1987 to 1994 or 1995 was consistent with the L5/S1 disc lesion in 1987.
41.Dr Thomson did not agree with Dr McGill’s opinion that the 1987 injury became permanent at the time of the injury, because one has to look at Mr De Bruyn’s symptomatology. The fact that Mr De Bruyn described two types of pain could mean two different injuries were suffered. He could perhaps have suffered a fresh injury for example in 1994 or 1995, Dr Thomson opined. When asked about Mr De Bruyn’s pain reported by him to be in different locations between 1987 and 1994, Dr Thomson opined that Mr De Bruyn could have had muscular ligamentous change to the back and that this did not necessarily pertain to the disc problem. Dr Thomson concluded therefore, that there are two possibilities. Firstly there is an injury in 1987 to the spine but not the lumbar disc which became permanent later on or secondly, Mr De Bruyn injured his lumbar disc in 1987 and it was not permanent until later in the evolution of the injury. It is also possible, Dr Thomson opined, that Mr De Bruyn’s training and physical fitness requirements caused his lower back problem.
consideration and findings
42.We have reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.
43.At the outset, we find that Mr De Bruyn was an honest witness whose credibility was undisputed.
44.There are a number of issues to be decided in this matter. Firstly, as a threshold issue, we must determine when Mr De Bruyn’s lower back condition became permanent. If it became permanent before 1 December 1988, then the claim for permanent impairment falls for consideration under the provisions of the 1971 Act. It is accepted by the Tribunal that in the present case, no lump sum compensation would be payable, given the limited category of conditions attracting lump sum payment under the 1971 Act. Such a finding would then result in no permanent impairment being made available to Mr De Bruyn. If Mr De Bruyn’s condition became permanent after 1 December 1988, when the 1988 Act commenced, then, Mr De Bruyn’s claim falls for consideration under sections 24 and 27 of the 1988 Act. Mr De Bruyn would then need at least 10 per cent impairment to be awarded permanent impairment.
45.It is not disputed that Mr De Bruyn had a parachute fall on 1 June 1987. Mr De Bruyn had several months off work, but eventually by the end of 1989, Mr De Bruyn had returned to work undertaking battle fitness training, representative football and undertook missions to Namibia and was passed as fit for a posting to Somalia. In 1993, Mr De Bruyn was promoted to full Corporal, successfully undertaking all physical training requirements. Mr De Bruyn was passed fit for service in Papua New Guinea in 1994 and was also cleared to undertake parachute training, which he did, and successfully undertook a parachute jump. During these periods, Mr De Bruyn would experience occasions of back pain.
46.It was in 1994, that Mr De Bruyn experienced great pulsating pain, during a basic fitness test, after completing two and a half kilometres of a five kilometre run. Mr De Bruyn described the pain as different to that he experienced in 1987. Then, in January or February 1995, during a further fitness test, Mr De Bruyn experienced similar back pain and failed the test. He subsequently failed a second test. Within a few days of failing his exercise test, he was undertaking the trivial activity of loading a video, when he experienced extreme back pain and found that he could not straighten his back.
47.Mr De Bruyn’s description of the sites of the pain from 1987 and those experienced in 1994 and 1995, is different. Given that evidence, the Tribunal and the experts considered whether or not there might have been discreet injuries to different sites of the spine. While Dr Thomson thought there might be the possibility of two discrete injuries, we prefer Dr McGill’s opinion that patients are notoriously unreliable in describing the site of pain. Furthermore, the site of the injury, that is the 1987 injury as a result of the parachute jump, does not necessarily reflect the site of the pain because of such factors of poor reporting, muscle spasm around the site of the injury and the possibility of referred pain.
48.The predominance of medical evidence, which we accept, is that the 1987 hard parachute landing caused an injury to the L5/S1 disc. On X-ray in 1987 and subsequent scans, there was no pathology at that time shown to the L5/S1. The MRI scan in 1995 however did show damage to the L5/S1 disc. Dr McGill’s opinion is that the permanent injury and as a result of the 1987 accident would have been apparent in June 1987 if an MRI scan had been undertaken. This was not Dr Davis’ view, nor that of Dr Thomson. Dr Davis’ view is that it would be up to 18 months before the injury became permanent and Dr Thomson thought the injury would be more permanent in either 1994 or 1995. Under cross-examination, Dr McGill stated that while his opinion is that the condition would be permanent in 1987 at the time of the accident, he acknowledged that it could be some years for permanent impairment to be shown.
49.The Tribunal has available to it a document from Major D W Chapman, for the Director General of the Army Health Services to the Compensation Section of the Department of Defence dated 29 August 1990 (T9), which stated that from Mr De Bruyn’s medical record, it appears that Mr De Bruyn’s condition of lower back injury from 1 June 1987, was not stable and medical treatment was not complete, suggesting an update in six months hence of that report.
50.Thus, on whatever clinical and radiological findings available in August 1990, Mr De Bruyn’s back condition was not considered stable and medical treatment was incomplete. On the Tribunal’s understanding of that document and the other evidence and expert opinion available to it, we find that the 1987 lower back injury sustained by Mr De Bruyn did not produce permanent impairment at the site of the L5/S1 disc until after 1 December 1988 and in all probability the permanency, on all of the evidence could not be established until 1995. The Tribunal has relied upon the opinions of Dr Thomson and Dr Davis and Mr De Bruyn’s undisputed evidence. Thus, as we have found that it would not be reasonable, on all of the evidence and on the balance of probabilities, to conclude a permanent impairment before 1995, then as the permanent impairment occurred after 1 December 1988, Mr De Bruyn’s claim for permanent impairment falls within the consideration of the provisions of the 1988 Act.
51.Considering the case law on the issue of permanent impairment, we note that in the Full Federal Court decision of Brennan v Comcare (1994) 50 FCR 555, the issue of when impairment becomes permanent was discussed. As Gummow J stated, the criteria to which Comcare shall have regard in determining whether an impairment is permanent are specified in subsection 24(2) of the 1988 Act. The Guide is not entrusted with the task of specifying criteria for determination of whether an impairment is permanent. Furthermore, in Comcare v Levett (1995) 60 FCR 14, the Full Federal Court noted, referring to Brennan v Comcare (supra), that the 1988 Act is beneficial legislation and should be construed liberally. Subsection 124(3) of the 1988 is intended to render section 24 inapplicable to a permanent impairment that occurred while the 1971 Act was in force. But, the operation of section 24 of the 1988 Act is limited by subsection 124(3) of the 1988 Act, properly construed, only when a permanent impairment occurred before the 1988 Act came into force.
52.At the commencement of the Hearing, it appeared that the medical opinion was united in its assessment of Mr De Bruyn’s back condition at 10 per cent from Table 9.6 of the Guide. However, at Hearing, Dr McGill reconsidered his opinion and opined that on the balance of probabilities, Mr De Bruyn had a five per cent impairment or minor restriction of his lower back. Dr Davis was recalled to provide further comment, given Dr McGill’s change of assessment. It was noted that Dr McGill’s view was not strongly held, when the Tribunal carefully considered the entirety of his evidence. Nevertheless, he concluded a five per cent impairment. It appears to the Tribunal on consideration of Dr Davis’ report and evidence to the Tribunal as to how he undertook the assessment of impairment and the reasoning behind it, that Dr Davis’ assessment was arrived at following a more comprehensive assessment process. This is not in any way meant as a criticism of Dr McGill, as when he undertook his initial assessment, it was not a contentious issue and furthermore, Dr McGill was not recalled to provide any further evidence. We find that given Dr Davis’ evidence and the Tribunal’s understanding of the process of his assessment in addition to the assessment of Dr Thomas, and Mr De Bruyn’s own evidence, that a 10 per cent permanent impairment from Table 9.6 of the Guide is more appropriate to reflect Mr De Bruyn’s restriction of activity and loss of less than half the range of movement.
53.Thus, in summary, on all of the evidence provided and consideration of the legislation, we find that Mr De Bruyn’s condition became permanent after 1 December 1988 and that he has suffered a 10 per cent permanent impairment of the lower back pursuant to Table 9.6 of the Guide.
54.Accordingly, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that:
(i)Pursuant to section 24 of the 1988 Act, Mr De Bruyn suffers a 10 per cent whole person permanent impairment of the lower back and the Respondent is liable to pay compensation in relation to that permanent impairment;
(ii)Pursuant to section 27 of the 1988 Act, the Respondent is liable to pay compensation for non-economic loss and the assessment of the correct amount of compensation for non-economic loss is remitted to the Respondent to calculate and
(iii)The Respondent is to pay Mr De Bruyn’s reasonable legal costs as taxed or agreed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr M E C Thorpe, Member
Signed: Linda Blue................................................
AssociateDates of Hearing 16,17 & 18 February 2004
and 31 May 2004
Date of Decision June 2004
Counsel for the Applicant Mr C Jackson of Counsel
Solicitor for the Applicant Ms N Streader, D'Arcys Solicitors
Counsel for the Respondent Mr G Johnson of Counsel
Solicitor for the Respondent Ms J Greaves, Blake Dawson Waldron
SCHEDULE 1
LIST OF EXHIBITS
Number
Description Date
A1
Report from Dr J F Davis, Injury Management Consultant in Occupational Medicine
14 July 2003 A2
Schedule of questions and answers provided by Dr R L Thomson, Consultant Surgeon
R1
Report of Dr N W McGill, Consultant Rheumatologist
4 February 2003 R2(b)
Supplementary report of Dr N W McGill, Consultant Rheumatologist
22 April 2003 R2(a)
Referral letter from Dr McGill from Blake Dawson Waldron
9 April 2003 R3
Non-economic loss questionnaire completed by Mr De Bruyn
30 October 2001
0
4
0