Fountain and Comcare

[2004] AATA 1140

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1140

ADMINISTRATIVE APPEALS TRIBUNAL      )

)  No N2003/608

)        N2003/1420   

GENERAL ADMINISTRATIVE DIVISION
Re		Harry Fountain

Applicant

And Comcare

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date3 November 2004

PlaceSydney

Decision The decisions under review are affirmed.

...........................................

Ms N Bell
  Senior Member

VETERANS’ AFFAIRS – Whether Military Employment Caused Lumbar Spine and Cervical Spine Conditions

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

3 November 2004 Ms N Bell, Senior Member

1.Mr Fountain, 53 years old, served with the Royal Australian Air Force (“the RAAF”) from 18 June 1974 until his voluntary discharge at the rank of Warrant Officer on 19 July 2000. 

2. The Department of Veterans’ Affairs refused to accept liability for Mr Fountain’s cervical spondylosis and headache condition on 5 February 2003; and his lumbar spine and left leg condition on 10 February 2003.  Mr Fountain contends that but for his employment with the RAAF, he would not have developed the conditions and his persistence has brought him before me on this occasion.

LAW AND ISSUES

3.Section 14 of the Safety, Rehabilitation and Compensation Act 1988 provides for liability to pay compensation to employees who suffer injury.

4.In order for Mr Fountain to be eligible for compensation for the conditions claimed, I must be satisfied that the injury suffered by him arose out of, or in the course of, his employment.

the nature of mr fountain’s work

5.During Mr Fountain’s time with the RAAF, he worked as an Avionics Technician and then as a Technical Officer.  Upon joining, he undertook three months of recruitment training and then completed the first part of an Avionics course over an 18 month period with the School of Radio in Laverton Melbourne.  Having completed this first stage of training he worked with the Hercules squadron at Richmond, servicing the aircraft.  This involved moving the radio equipment from the plane to a work-space on the hangar floor and then replacing the equipment in the planes.  Mr Fountain recalled the average weight of the control boxes and transmitter units to be 40-50kg.  He also recalled that about half of his time was spent moving the radio equipment and the other half was spent actually testing and servicing it.  Mr Fountain also worked within the planes themselves and this often involved working within a space that was only about four feet high.

6.Mr Fountain returned to the School of Radio to undertake the second part of his Avionics course which took about one year.  Upon completion he was stationed at Newcastle and worked on the Mirage aircraft until he was sent to Malaysia about one year later. 

7.Mr Fountain spent two and a half years in Malaysia.  His work there was determined by a rotation type system.  The typical weight of the equipment he was lifting was between 40-50 kilograms.  Mr Fountain added that the radar of the plane is in the nose of the aircraft and this weighed about 100 kilograms.  He said that two people would manoeuvre the radar off and on the plane and that this exercise was carried out about once every week.

8.Upon his return from Malaysia in 1980 he was based in Richmond working on the Hercules aircraft.  A rotation type system was in operation there too and Mr Fountain, every 10 weeks, would spend two weeks working on the flight lines.  For the remaining time he was in the workshop and on the hangar floor.  On Mondays he would participate in a Muster Parade, part of which required recruits to run around the tarmac for 30 minutes in their safety shoes and overalls.

9.From 1987 until 1996, Mr Fountain worked in Melbourne’s Logistics Unit as a Technical Assessor.  This consisted of administrative type work.  As this work was sedentary, Mr Fountain said that he played Touch Football once a week and four days a week he would run between five and ten kilometres. 

THE NATURE OF MR FOUNTAIN’S CONDITIONS

10.Mr Fountain recalls his headaches starting in early 1993 and reported to the medical unit a few months later.  He remembered being referred to a physiotherapist who taught him some exercises that he could do whilst sitting at his desk.  Mr Fountain contended that whilst he only reported his headaches every couple of years, they were ongoing.  He said that his back and neck problems were experienced “on and off” and added that it was not uncommon for him to have a headache that would persist for a month.  When asked what he did to treat such headaches, Mr Fountain stated that he would take Panadol.  In relation to his neck, Mr Fountain said that it was stiff “most of the time”. 

11.Mr Fountain did not complain of symptoms in relation to his back and leg until late 1991 or early 1992 when he said he began to experience pain in his left leg.  Assuming that the pain was related to his ham-string he did not seek treatment until six months to a year later.  He reported to the medical section and was referred by a doctor to have his back x-rayed.  Mr Fountain recalls receiving physiotherapy a “couple of times”.  His back and leg condition was described as something he experienced “on and off”.  Mr Fountain recalled having his back treated about once every month.  He stated that running was the main activity that triggered his back pain.

12.Mr Fountain cannot recall any specific incident that gave impetus to him experiencing back, neck or leg pain.  The pain that he experiences is that of persistent pain in his low back which occurs a few days each week.  Mr Fountain also has pain in his left leg, through the left buttock and upper thigh.  He stated that his neck pain seems to be associated with the headaches that he experiences and he added that there is no discernible trigger for his neck pain and headaches, although, Mr Fountain noted that both conditions are worse when he has been standing or sitting for long periods of time.  Mr Fountain takes tablets for his headaches and sees a sports therapist from time to time for a massage. 

13.Mr Fountain did not agree with the suggestion that, given he first noticed his leg and back pain five years after ceasing activities involving heavy lifting, this could be indicative of his condition being age-related degeneration.

medical evidence

14.Dr Conrad, Rheumatologist, gave oral evidence by telephone to the effect that, on the balance of probabilities, Mr Fountain’s employment was a substantial contributing factor.  Dr Conrad took into consideration the repetitive lifting undertaken by Mr Fountain whilst a Radio Technician and his having to jog whilst wearing heavy boots.  Dr Conrad also considered the ergonomic conditions in the sedentary job Mr Fountain was in during 1987-2000 as unsatisfactory. 

15.Dr Conrad conceded that the nexus between Mr Fountain’s neck pain and his work environment was temporal and depended upon the history given by Mr Fountain.  Dr Conrad understood that Mr Fountain sat at an “ordinary desk” in an “ordinary chair”.  In relation to Mr Fountain’s back pain, Dr Conrad acknowledged that there was no specific accident relatable to the injury but stated that the active work undertaken whilst a radio technician would have been the main contributing factor. 

16.Dr Conrad compared Mr Fountain’s day-to-day work activities as a Radio Technician to those of a Bricklayer, a Baggage Handler and a Shearer.  He stated that it was not uncommon for people in these categories of employment to complain of back pain some time after ceasing work.  He supported the hypothesis that repetitive running can cause degeneration to the spine but noted that he had not seen any studies to that effect.  In his report dated 14 July 2003, Dr Conrad stated that Mr Fountain suffered from a 24 per cent whole person impairment in total for both conditions.

17.When advised that Mr Fountain had ceased all physical work in 1987 and that his lumbar spine condition did not come on until 1992, Dr Conrad stated that the probability of Mr Fountain’s back injury being work caused dropped from being probable, to possible.  He added that this makes it more difficult to draw a nexus between the injury and Mr Fountain’s employment, but still considered that the link was there.  He described Mr Fountain’s overall condition as that of a “gradual deterioration”.

18.Dr Moloney, Neurosurgeon, in his telephone evidence, noted that Mr Fountain’s activities during 1975 and 1987 would have amounted to a series of minor traumas that, over time, contributed to significant changes in the neck and back.  Dr Moloney referred to Mr Fountain’s back condition as a “mild degeneration”, noting that he was not comfortable with this terminology.  In his report dated 27 November 2002, Dr Moloney diagnosed Mr Fountain’s neck pain, shoulder pain, arm pain and headache pain as originating from his cervical spine condition.  His examination of Mr Fountain’s back revealed only marginal reduction in his lumbar spine movements.  Dr Moloney was of the opinion that on the history available, there is a causal relationship between Mr Fountain’s condition and his activities at work.

19.Associate Professor McPhee, Consultant Rheumatologist, considered that the mild degenerative changes that had occurred in Mr Fountain’s back and neck were consistent with the ageing process and that, on the balance of probabilities, Mr Fountain’s employment did not contribute to his lower back and neck problems.  Associate Professor McPhee added that given the description of the type of work Mr Fountain undertook, he should have experienced pain in his back soon after a particular event, if that injury is to be relevant to the degeneration.  He noted that no history of injuries was present.  In relation to the onset of symptoms being after a number of years, Associate Professor McPhee stated that this fact further supports the view that Mr Fountain’s conditions are age rather than work related.  He added that the possibility of Mr Fountain’s work exacerbating the conditions could not be excluded, but that any contribution would be very small. 

20.Mr Fountain’s work in a position lifting various weights over a 12 year period could not be described as “heavy work” according to the Associate Professor.  He added that careers that involve lifting type work do not give rise to developing a degenerative disease in the neck.  In his report dated 28 November 2003, Associate Professor McPhee assessed a 5% whole person impairment in relation to Mr Fountain’s lower back condition alone.

OTHER EVIDENCE

21.A Health Status Assessment was completed and signed by Mr Fountain and a medical examiner on 1 March 2000.  This Assessment included a questionnaire style section that required Mr Fountain to report on a vast range of conditions/symptoms.  In response to the questions “back or neck pain or injury”; “pain in legs or feet” and “migraine or frequent headaches”, Mr Fountain indicated “no”.  He did, however, answer positively to questions of “eyesight problems” and “any accident or operation”. 

22.A Medical Examination Record, dated 13 July 1998, indicated Mr Fountain’s head; face; neck; scalp and back/spinal system as being normal.  A similar report, dated 2 March 2000 also indicated Mr Fountain’s head; face; neck and scalp as being normal.  In relation to his back/spinal system on this occasion, it was indicated that Mr Fountain’s condition was abnormal and noted that he exhibited a reduced range of movement in his lumbar spine.

23.The clinical notes of Mr Fountain’s treating general practitioner, Dr Rossman, reported that Mr Fountain visited Dr Rossman on 19 occasions over the course of three years.  Of those 19 occasions, Mr Fountain consulted Dr Rossman in relation to the conditions before me on just one occasion.

24.A report provided by Mr Fountain’s current physiotherapist, Mr Richard Miles, stated that he first presented with back pain on 19 February 2004 and provided a four day history only of this condition.  Mr Miles reported that Mr Fountain was seen on three occasions up until 4 March 2004 and that he progressed very well.  It was Mr Miles’ opinion that Mr Fountain’s pain levels and function had returned to normal.  Mr Fountain attended again on 24 and 29 June, complaining of muscle irritation and had not attended since.  This report stated that Mr Fountain did not report any significant pre-existing problems or impairments.

CONSIDERATION

25.In considering the contribution of Mr Fountain’s work as an Avionics technician to his back and leg conditions, I have had regard to Mr Fountain’s evidence and that of Dr Conrad, Dr Moloney, Associate Professor McPhee and Dr Hughes, Consultant Orthopaedic Surgeon.  In order to accept Dr Conrad’s evidence and make a determination favourable to Mr Fountain in respect of these conditions, I would have to be satisfied that Mr Fountain’s day-to-day work was indeed comparable to those of a bricklayer, baggage handler and shearer.  A further obstacle to such a determination is the fact that Mr Fountain did not complain of pain until five years after ceasing this type of work, leading to there being only a “possibility” that the work contributed to his conditions.

26.Associate Professor McPhee stated that Mr Fountain’s work lifting various weights of up to 50 kilograms on a day-to-day basis over a 12 year period did not amount to what is commonly categorised as “heavy work”.  Associate Professor McPhee’s diagnosis was of age-related degeneration and he did not take the view that Mr Fountain’s work was, on the balance of probability, a contributing factor.  Dr Moloney noted a marginal reduction in Mr Fountain’s lumbar range of movement and conceded that his opinion as to causation was based upon the history provided by Mr Fountain.  Dr Hughes, in his report dated 12 February 2002, examined Mr Fountain as having a full painless range of movement and diagnosed a minor degree of degenerative disc disease in his lumbar spine, though I note that Dr Hughes was not made fully aware by Mr Fountain of his lifting habits.

27.I prefer the opinions of Associate Professor McPhee, Dr Hughes and, to a limited extent, Dr Moloney.  Drawing a nexus between Mr Fountain’s back and leg conditions and his employment is not assisted by Mr Fountain’s responses on the Health Status Assessment, indicating that as on 1 March 2000, he was symptom free in all areas for which he is claiming compensation.  I have also had regard to the limited treatment that Mr Fountain has sought in relation to, in particular, his back condition and the fact that his treating physiotherapist had no history of his work in Avionics as contributing to his current state.

28.In relation to Mr Fountain being required to jog in heavy boots during service, as a contributing factor to his back and leg conditions, I consider that the medical evidence on this point is inconclusive and does not establish a causative link. 

29.In relation to Mr Fountain’s neck and headache conditions, he first presented with symptoms on 26 April 1993, some six years after commencing his work as a Technical Assessor.  I note that Mr Fountain sought further medical assistance on a number of occasions from 1996 to 1998 (T4).  I also note that these clinical notes make reference to Mr Fountain complaining of headaches.  On 5 February 1996, Mr Fountain’s stiff neck was referred to as a “postural” neck condition (p.15).  On 21 August 1998 Mr Fountain’s neck was x-rayed and his condition was described as degenerative (T5).  The limited treatment received by Mr Fountain for a “chronic” condition over a five year period, coupled with Dr Conrad’s view that his ergonomic environment at work may have contributed to his neck and headache conditions, is not sufficient to make me comfortably satisfied that Mr Fountain’s neck condition arose out of or in the course of his employment.

DECISION

30.The decisions under review are affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ...........[Linda Blue]...........................................
  Associate

Dates of Hearing  30 and 31 August 2004
Date of Decision  2 November 2004
Counsel for the Applicant         Mr Craig Colborne
Solicitor for the Applicant          Ms Julie Wyatt
Counsel for the Respondent     Mr Nick Polin
Solicitor for the Respondent     Ms Shelley Johnson