Dean and Military Rehabilitation and Compensation Commission
[2004] AATA 1212
•19 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1212
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1785
GENERAL ADMINISTRATIVE DIVISION ) Re ALLAN DEAN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date19 November 2004
PlaceSydney
Decision The decision under review is affirmed. .......................................
Ms N Bell
Senior Member
COMPENSATION – Injury to Lumbar Spine – Assessment of Degree of Permanent Impairment
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
19 November 2004 Ms N Bell, Senior Member 1. Mr Dean, born in 1969, enlisted in the Australian Army in 1988 and was discharged in 1999. In 1992 he suffered an injury to his lower back in a motor vehicle accident while on duty. He was driving a Land cruiser at night, following a vehicle in front of him. The Land cruiser was not fitted with seat belts and when the vehicle went into a ditch and rolled over onto its side, Mr Dean’s passenger landed on top of him and Mr Dean’s lower back was against the door handles. He suffered severe back pain. He had a recurrence of severe lower back pain in 1995 when putting on his boots and experienced severe back pain again 1998 when lifting a trunk. In the same year he contracted Ross River Fever. He took approximately six months to recover sufficient to return to normal work hours.
2. Following a claim for compensation, the Military Rehabilitation and Compensation Commission (“MRCC”) accepted liability in 1999 for Mr Dean’s lower back condition arising out of the 1992 motor vehicle accident. Mr Dean’s permanent impairment was initially assessed by the MRCC in 2001 as five per cent and later as greater than 10 per cent and an interim payment was made. In 2002 the MRCC assessed permanent impairment at 15 per cent under Table 9.6 of the Comcare Tables.
3. In the meantime, Mr Dean had attempted work as a surveyor after his discharge from the Army in 1999. He ceased this work after three months and has not worked since then.
4. Mr Dean was assessed and paid at 15 per cent whole person impairment, concerning his spine under Table 9.6 for “loss of half normal range of movement”. Mr Dean seeks payment for an increase in permanent impairment under Table 9.6 for his spine and/or Table 9.5 concerning his lower limb.
5. An assessment of 20 per cent under Table 9.6 requires loss of more than half the normal range of movement and the next available assessment, of 30 per cent, requires “complete loss of movement”.
6. An assessment of 10 per cent under Table 9.5 requires a difficulty with grades and steps and for the next available assessment under that Table, of 20 per cent, difficulty with grades, steps and distances is required.
7. The matter is complicated by the provisions of section 25 (4) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) which provides that where Comcare (or any other respondent) has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable in respect of a subsequent increase in degree of impairment, unless the increase is 10 per cent or more.
8. The impact of this provision on the issues in this application is that with the current assessment of 15 per cent under Table 9.6, the Applicant must have, as a minimum, an increase to 30 per cent under Table 9.6 or an assessment of at least 10 per cent under Table 9.5, in respect of his lower limb. In other words, Mr Dean must show, as a minimum, that he has either complete loss of movement of his spine or he has difficulty with grades, steps and distances.
Mr Dean’s Evidence
9. Mr Dean’s evidence was that in 1999 he was walking 200 to 300 metres, stretching and doing hydro therapy and working on improving his core strength in an effort to improve his back condition. He said he was unable, however, to sustain the activities required in his work as a surveyor, including walking over uneven surfaces of building sites and hammering pegs. He said the pain in his back increased.
10. He said that under the care of Dr Kevin Boundy, Sports Medicine Consultant, he was, by 2001, still walking and swimming but by the end of 2002 his back was getting worse and he was unable to bend to put on his shoes and could not travel in a car for more than 15 minutes. He said that stairs had become a problem and he had become more housebound and had more pain. He said he takes stairs by leading with his left foot and then bringing his right foot alongside his left and repeating that movement. He said he now limps, avoiding putting all his weight on his right leg for fear that it will give way.
11. He said that his activity on the property where he lives is limited to using a ride-on lawn mower for 10 minutes and watering the plants. His wife does all the housework. He cannot bend further than allows his hands to reach just above his knees and he can only arch his back slightly. He currently takes “Tramadol” for pain and travels 10 kilometres to Kempsey three times every week for physiotherapy.
12. In cross-examination Mr Dean said that he cannot squat, and cannot walk for more than 120 metres, after which he feels sore. When he walks the slight gradient to his parents’ house he is sore afterwards.
Medical Evidence
13. Dr Robert Nall, Consultant Orthopaedic Surgeon, in 1999, found Mr Dean had pain on bending and straightening, and pain when sitting or standing. However, he found that the movements of Mr Dean’s spine were excellent, that his x-rays were normal and that he had no neurological signs.
14. Dr Boundy provided a number of reports, the first in April 2001, documenting the deterioration of Mr Dean’s back condition from 1999. Dr Boundy ultimately assessed 30 per cent whole person impairment under Table 9.6 and 30 per cent whole person impairment under Table 9.5. In making this assessment in November 2002, Dr Boundy described a “walk” he did with Mr Dean during which he had a pronounced limp, could not lift his right foot to climb stairs and became agitated about approaching a downhill gradient. He explained his assessment under Table 9.6, in December 2002, as effectively no range of movement with any movement taking place at Mr Dean’s hips and even slight movement causing such severe pain that he is unable to continue or to stand. Dr Boundy described Mr Dean’s functional impairment of his spine as “as bad as it can get”.
15. I note that in January 2002 Dr Boundy had assessed Mr Dean’s impairment of his spine at 15 per cent, being a loss of half range of movement, on the basis of an assessment done by Robyn Withers, physiotherapist. That evaluation concluded that Mr Dean cannot squat, bend, walk on uneven ground for more than three minutes at a moderate pace and that he limps.
16. In March 2003 Dr Shatwell, Consultant in Orthopaedic and Accident Surgery, reported that Mr Dean had chronic low back pain but provided no diagnosis. He said that Mr Dean had almost no spinal flexion or extension and that he could not squat. He provided an assessment of 30 per cent whole person impairment, presumably under Table 9.6.
17. Dr Mark Russo, Consultant in Pain Medicine, in July 2003, found that Mr Dean had minimal movement in his lumbosacral spine. He also found that Mr Dean had normal posture and gait and that a neurological assessment of Mr Dean’s lower limbs was normal. He assessed 10 per cent whole person impairment pursuant to Table 9.6.
18. Dr Raymond Wallace, Orthopaedic Surgeon, reported that Mr Dean had a dull, aching pain at his right lumbar spine radiating down his right leg. He found that he had a 20 per cent range of movement of his lumbar spine arising out of significant musculo ligamentous strain of his lumbar spine. He said Mr Dean walks with a bilateral limp. He has no neurological abnormal signs. In his report dated 13 September 2004 Dr Wallace assessed an impairment of 10 per cent, with no table specified. In a supplementary report of the same date he assessed 20 per cent impairment under Table 9.6 with a loss of more than half the normal range of movement in Mr Dean’s thoracolumbar spine. He also assessed an impairment of 20 per cent under Table 9.5.
19. In oral evidence to the Tribunal, Dr Wallace said that Mr Dean had told him that he experiences an exacerbation of pain on slopes and stairs. He also said that it is likely that Mr Dean has some days on which he is better than others and he does not suffer a continuum of constant pain. He said that squatting does not inform about the ability of the spine to bend and the absence of neurological signs does not mean that there is no pain. He noted that the most common reason for a limp is pain. He agreed, however, that a limp can be exaggerated and agreed that one would expect Mr Dean to always walk up stairs in the way earlier described by him.
20. Dr David Maxwell, Orthopaedic and Spinal Surgeon, considered that Mr Dean was consciously fabricating his range of movement. He noted that Mr Dean told him that he has no leg pain at all. He also noted that Mr Dean, on examination, reported pain and tenderness on light palpitation at the level of L5/S1 and that a compressive load to the top of his head caused him back pain, a non-organic sign.
21. He concluded that there is no pathological reason for Mr Dean having a loss of almost all movement in his back when there is no neurological compromise and investigations are normal.
22. In oral evidence to the Tribunal Dr Maxwell said that if one cannot find a cause for pain and it does not fit a pattern then there is no organic cause other than an imagined or functional cause. He said there is no explanation for extreme fluctuation of pain.
Video Evidence
23. Video evidence of Mr Dean was viewed by and tendered to the Tribunal. In a video of surveillance of Mr Dean of 24 September 2004 he was shown squatting unaided on one occasion, walking along the street at a normal pace and without limping, walking at a normal pace and without limping up a grassy incline on his parent’s property and getting into and out of a vehicle with apparent ease.
24. While there was no video evidence of Mr Dean bending or using stairs and no notation in the investigation report of Mr Dean using stairs, Mr Daniels, Investigator said in oral evidence that he did not recall Mr Dean using the stairs in anything but a normal fashion. Mr Daniels also noted that he observed, but was unable to record on videotape, the Applicant bending slightly with an implement to pick up dog faeces on his property. Mr Daniels noted that he had not observed Mr Dean continuously as he walked from one shop to another over a distance of some 450 metres.
25. In relation to these matters Mr Dean insisted that even on the video he was walking with a limp. It was apparent on watching the video that he was not walking with a limp. Mr Dean also maintained that when he used the stairs leading to the McDonalds restaurant in which he was video taped having a meal, he used the stairs leading with his left foot on every stair rather than using alternate feet on alternate stairs. Mr Dean also maintained that in walking a distance such as 450 metres he would have had to stop but had no particular recollection of this.
consideration
26. The evidence in this application is of extremes. At one end of the spectrum is Dr Boundy’s and Dr Shatwell’s evidence of no range of movement in Mr Dean’s back. At the other end is Dr Maxwell’s assessment of no limitation of movement at all and Dr Russo’s assessment at just 10 per cent.
27. Mr Dean maintained he has a level of impairment of a very high order, yet was seen by Mr Daniels to bend slightly and was observed on video to move freely into and out of his vehicle and to squat with apparent ease. While I note Dr Wallace’s evidence that squatting is not an indicator of range of spinal movement, it was Mr Dean’s firm evidence that he is unable to squat – yet he clearly did so as recorded on video.
28. I consider that Dr Wallace’s assessment of an impairment of 20 percent under table 9.6 is to be preferred as a more balanced assessment, allowing as it does for a further and predictable deterioration in Mr Dean’s condition but recognising his ability, apparent from the video, to move his spine to some extent.
29. In relation to Mr Dean’s lower limbs, the only assessments available are from Dr Wallace and Dr Boundy. I note the submission of Mr Gray, Counsel for Mr Dean, that Dr Russo was not asked by the Respondent’s delegate to assess under table 9.5 and that this explains the absence of any assessment by that doctor. However, I note Dr Russo’s opinion that Mr Dean had normal posture and gait and that a neurological assessment of his lower limbs was normal.
30. Similarly, Dr Nall found no neurological signs and Dr Maxwell found no neurological compromise and reported that Mr Dean told him he had no leg pain.
31. I am mindful of Dr Wallace’s evidence that the absence of neurological signs does not mean there is no pain. However, the video evidence of Mr Dean squatting and walking along the street and up a hill gave no indication that he was in any pain or that he limped or walked particularly slowly. It was advanced by Mr Gray and Mr Dean that this was simply a “good day”. Dr Wallace’s evidence, however, was that a limp can be exaggerated and he would expect Mr Dean’s method of climbing stairs to remain constant.
32. It is difficult to reconcile Mr Dean’s evidence of the difficulty he has with grades and steps with the video evidence of him walking with no apparent difficulty up a hill on his parents’ property. While not directly relevant to assessment under table 9.5, I am concerned by Mr Dean’s firm evidence that he limps. The video clearly shows no limp either when walking up a hill or on an even footpath. I am also mindful of Mr Daniel’s evidence that he observed Mr Dean to negotiate the steps leading up to the McDonald’s restaurant in a normal manner.
33. On balance, I cannot be comfortably satisfied that Mr Dean has difficulty, because of pain or otherwise, with grades and steps. It follows that I am not satisfied that his condition attracts any allocation under table 9.5 of the Comcare tables.
34. As an assessment of 20 percent under table 9.6 amounts to an increase of just 5 percent over the last assessment on which he was paid compensation for permanent impairment, Mr Dean is not entitled, under section 25(4), to be paid a further amount of compensation.
Decision
35. The decision under review is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ...........[Linda Blue]..............................
AssociateDate of Hearing 21 October 2004
Date of Decision 19 November 2004
Counsel for the Applicant Mr L. T. Grey
Solicitor for the Applicant Mr T. Mannah
Counsel for the Respondent Mr N. Polin
Solicitor for the Respondent Mr B. Solly
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