Dive and Comcare

[2005] AATA 862

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 862

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/442

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN DOUGLAS JAMES DIVE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date6 September 2005

PlaceBrisbane

Decision The decision under review is affirmed

.................[Sgd]........................

SENIOR MEMBER

CATCHWORDS

COMPENSATION – Commonwealth employees – whole person impairment due to back condition assessed at 15% - further compensation sought for deterioration in condition – musculo-liagamentous strain – nerve root compression – peripheral neuropathy – applicant’s permanent impairment had not increased by a further 10% as required – further compensation denied – decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 24, 25

Telstra Corporation Ltd v Barrow (1994) 35 ALD 461

REASONS FOR DECISION

6 September 2004 Senior Member B J McCabe         

1.      Mr John Dive was employed by of the Federal Airports Corporation as an airport groundsman. He injured his back on 5 January 1989 while lifting a bag of cement at work. He sought compensation. Comcare determined on 29 March 1993 that he had a 15% whole person impairment as a result of his back condition.

2. The applicant says his condition has deteriorated and he is now entitled to a further amount of compensation under s 25 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Comcare rejected the claim in a reviewable decision dated 3 June 2004, and the applicant has asked the Tribunal to reconsider the matter.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following material was also tendered in evidence:

·Statement of the applicant dated 13 October 2004 (exhibit 2);

·Report of Dr Morgan dated 5 November 2004 (exhibit 3);

·Report of Dr Cameron dated 9 November 2004 (exhibit 4); and

·Previous Administrative Appeals Tribunal decision of Deputy President Muller dated 22 March 1996 (exhibit 5).

4.      The following witnesses gave evidence at the hearing:

·John Douglas James Dive;

·Dr Roger Watson;

·Dr John Cameron; and

·Dr David Morgan.

5.      The hearing was in Townsville. The parties provided extensive written submissions at a later point.

6.      Mr Honchin of counsel represented the applicant, and Mr Clark of counsel represented the respondent.

the legislation

7. Section 24 of the SRC Act says Comcare is liable to pay compensation to an employee where he or she suffers an injury in the course of employment that results in permanent impairment. Once a final determination has been made the degree of permanent impairment, s 25(4) says Comcare may not adjust the determination (and the person’s compensation in respect of permanent impairment may not be adjusted) unless the impairment has increased by 10% or more.

history of the claim

8.      The applicant was employed by the Federal Airports Corporation as a groundsman. He injured his back while lifting a bag of cement on 5 January 1989. He was off work for several weeks as a result. His employment was terminated because of his work performance on 7 February 1989.

9. The applicant subsequently made a claim for lower back pain as a result of his work injury. The respondent accepted liability on 28 February 1989 for a musculo-ligamentous injury to the lower back pursuant to s 14 of the SRC Act. The applicant made a claim for permanent impairment in 1992 under s 25 of the SRC Act in respect of the discs in his lower back, lower back pain, left leg and numbness of left leg. Comcare determined on 29 March 1993 that the applicant suffered from a 15% level of permanent impairment as a result of his lower back condition. The respondent says the determination was made following the report of Dr Lowy who based his conclusions on the loss of movement in the spine. I agree that is an accurate reflection of the correspondence and reports.

10.     The claim under consideration in these proceedings was made on 16 September 2003. The claim referred to “‘musculo-ligamentous strain of the low back back’ but in reality ‘degenerative lumbar spinal disease’”: see claim form at document T244 at p 522. Comcare rejected the claim in its determination of 22 January 2004 on the basis it had never accepted liability for a lower limb condition, and because the applicant’s medical report from Dr Watson suggested the level of impairment had only increased by 5% - which is less than the threshold of 10% required before an increase in compensation becomes payable: s 25(4). That determination was affirmed in the course of the reviewable decision dated 3 June 2004. The reviewable decision suggested the lower limb symptoms were associated with peripheral neuropathy which was caused by in particular alcohol consumption.

11.     The applicant argues there is nothing to stop me from concluding the respondent is liable to compensate the applicant in respect of the lower limb condition if I am satisfied it arises out of his employment. Mr Honchin said the decision in Telstra Corporation Ltd v Barrow (1994) 35 ALD 461 means I should focus on whether or not the applicant is entitled to compensation under the SRC Act. I should not refrain from awarding compensation for permanent impairment if I thought it was appropriate simply because the respondent had not accepted liability.

the applicant’s evidence

12.     The applicant’s statement refers to chronic pain from his back condition. He says he is unable to perform many domestic duties and his range of movement is limited. (He says he cannot kneel, for example.) He says he requires assistance at home. He has also made a number of modifications to his home, including lowered light switches, modified taps and ramps.

13.     Mr Dive gave oral evidence about the difficulties he encountered moving about. He says he can no longer walk long distances. He walks slowly and has difficulty with steps and inclines. He says he uses a walking frame at home. He said he avoids uneven surfaces. He has experienced a number of falls but he denies they were caused by his drinking.

14.     I noted Mr Dive was a slight man who looked much older than 55 years. He appeared to be in some discomfort while in the box but he was a feisty witness.

the medical evidence

15.     The applicant’s principal medical witness is Dr Watson. Dr Watson is a specialist in rehabilitation medicine. He provided a number of reports that were included in the T documents. In his letter of 4 May 2004 (document T254 at p 538) he says the applicant has difficulty walking distances and negotiating steps and inclines due to lumbosciatic pain. (I note Dr Watson did not confirm his opinions in this regard by undertaking separate tests of the applicant’s performance on slopes, tests and grades.) He says the lumbosciatic pain is attributable to the lumbar condition that has been accepted by Comcare. He concluded there was a whole person impairment of 20% under table 9.5 and an impairment of 20% under table 9.6, leading to a combined whole person impairment of 28%.

16.     There was a dispute over the extent and impact of nerve root compression. Dr Watson’s report of 29 January 2001 (document T182 at p 376) refers to “inflammatory or ischaemic change” to the nerve roots that is related to “the changed chemical milieu surrounding the roots as a consequence of nearby disc damage.” Dr Watson conceded this conclusion involved a degree of conjecture. He stood by his conclusions under cross-examination and said there was ample evidence in the literature that suggests the existence of the phenomenon.

17.     Mr Clark pointed out in his submissions that Dr Watson is not a neurologist. Mr Clark argued the conclusions should be given little weight as a result. He said I should prefer the evidence of Dr Cameron, a neurologist. Dr Cameron dismissed Dr Watson’s views on nerve root involvement. He said in his oral testimony:

This is a theory put around to explain why some people with nerve root compression get pain that persists. It’s purely theoretical. I don’t really think there is any hard evidence to suggest this is a mechanism.

18.     Later in the course of his answer to the same question from Mr Clark, Dr Cameron added:

…really this is purely theoretic stuff and I don’t believe there’s much support from a neurological side of things.

19.     In the course of cross-examination by Mr Honchin, Dr Cameron denied that disc compression was the source of any pain for the applicant. He added:

You’ve got to – it’s hard to say you’ve got nerve root pain due to compression where there’s no nerve compression.

20.     Dr Cameron emphasised that he was not disputing that the applicant suffered from back pain. He was merely disputing the source of the pain. He explained:

I’m not saying because there’s no disc in his back that this man is putting it on. There’s other causes, and they’ve been shown. I’ve documented them. He’s got other reasons for his pain, but it’s outside a disc protrusion.

21.     Dr Cameron was also critical in his evidence of Dr Watson’s conclusions that some of the applicant’s symptoms were referable to the L4 nerve root. Dr Cameron said the L4 nerve root could not be involved. He explained: “It’s the wrong anatomical distribution”. Dr Cameron went on to criticise the finding that Mr Dive has L5/S1 nerve root compression, which produced problems in the feet. Dr Cameron said the MRI scans did not disclose any nerve root compression.

22.     Dr Morgan, an orthopaedic surgeon, gave evidence at the hearing. He also disputed the conclusions of Dr Watson. He asserted in cross examination that there was no evidence of S1 nerve root involvement, or evidence of muscle wasting or weakness or other “neurological stigmata” indicating a problem with the central nervous system.

23.     Both Dr Cameron and Dr Morgan agree the real source of the applicant’s lower limb problems is peripheral neuropathy. The opinion is supported by Dr Cameron’s nerve conduction studies. Peripheral neuropathy is not compensable. Dr Cameron suggested the condition is more likely to be the product of excessive alcohol intake, although he conceded in cross-examination that he could not be sure that was the explanation. Dr Cameron also excluded sciatica as a cause of the problem with the lower limbs in the absence of evidence of nerve root compression, although he conceded in cross-examination there may have been some sciatica in the past.

24.     Mr Clark pointed out in his submissions that Drs Coroneos and Low also opined that the applicant suffered from peripheral neuropathy. Dr Watson relied on the nerve conduction studies completed by Dr Reimers in support of his view that peripheral neuropathy was absent. Mr Clark pointed out the report from Dr Reimers (document T145 at p 280) says peripheral neuropathy was unlikely but did not exclude the possibility altogether.

25.     I prefer the evidence of Dr Cameron in particular. He is an eminent neurologist with extensive academic qualifications in addition to his experience as a clinician. The questions posed by the applicant’s lower limb pain fall squarely within Dr Cameron’s area of expertise. He was able to point out a number of errors in Dr Watson’s observations on neurological questions which might be explained by the fact that Dr Watson is a rehabilitation specialist.  Dr Cameron’s views are consistent with the views of Dr Morgan in particular (although that is not entirely surprising, given they were both called by the respondent). I am satisfied the balance of the evidence weighs in favour of a conclusion that the applicant’s lower limb condition is referable to peripheral neuropathy rather than the applicant’s accepted musculo‑ligamentous injury.

assessing the evidence

26.     Comcare is not liable to compensate the applicant in respect of impairment caused by his lower limb condition because that condition is not connected with his employment (either directly, or because it was a consequence of the work-related injury to his back). All that remains is for me to consider whether the applicant’s degree of impairment has increased by more than 10% as a result of his back condition.

27.     The reviewable decision summarises the assessment of the various medical experts under Table 9.6 of the Guide to Permanent Impairment. Table 9.6 relates to the spine. Dr Watson’s assessment is the most generous: it suggests the applicant now suffers from a 20% whole person impairment under Table 9.6. That does not amount to a 10% increase which is the minimum before an increase in compensation is payable.

conclusion

28.     The applicant’s lower limb condition is not causally connected to his injury at work on 5 January 1989. The degree of impairment brought about by his lower back condition has not increased by at least 10%. The decision under review is therefore affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Date of Hearing  15 March 2005, Townsville
  4 April 2005, Brisbane
Date of Decision  6 September 2005, Brisbane

The applicant was represented by Mr Honchin of Counsel.

The respondent was represented by Mr Clark of Counsel.