Gardner and Military Rehabilitation and Compensation Commission
[2006] AATA 712
•18 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 712
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/935
VETERANS’ APPEALS DIVISION ) Re PETER JOHN GARDNER Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott
Dr M Denovan, MemberDate18 August 2006
PlaceBrisbane
Decision The decision under review is affirmed.
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SENIOR MEMBER
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/935
VETERANS’ APPEALS DIVISION ) Re PETER JOHN GARDNER Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
CORRIGENDUM [2006] AATA 712
Tribunal Senior Member P McDermott
Dr M Denovan, MemberDate25 August 2006
Place Brisbane
A decision was handed down in the above matter on 18 August 2006. The decision number noted on the front page of the decision was “Q2004/935”. This should have read “Q2004/935, Q2005/42, Q2005/675, Q2006/114”.
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SENIOR MEMBER
CATCHWORDS
COMPENSATION - Permanent injury – lump sum payment – injury and liability - decision affirmed
Safety Rehabilitation and Compensation Act 1988 s14 s24
Lees and Comcare (1999) 29 AAR 350
Oudyn and Australian Postal Corporation [2002] AATA 72 (7 February 2002)
Coffey and Aust Post Corp Q2002/1000[2005] AATA 597Coward and Military Compensation and Rehabilitation Service [2006] FCA 840
REASONS FOR DECISION
18 August 2006 Senior Member P McDermott
Dr M Denovan, Member1. Mr Peter Gardner enlisted in the Australian Army in 1983. He was assigned first to the Catering Corps and then later to the Dental Corps.
2. As a result of an electric shock that occurred on 28 August 1992 he suffered partial thickness burns to the first and second digits of the right hand, for which the respondent accepted liability by determination dated 7 September 2005.
3. On or about 30 August 1993 Mr Gardner injured his neck whilst performing push ups, and as a result developed disc herniations at the C4/5 and C5/6 levels. The respondent accepted liability for this injury in a determination dated 2 November 2000.
4. Mr Gardner now suffers from headaches and an upper limb condition, namely pain and numbness in his right hand. He believes, and has lodged claims to the that effect these problems are a consequence of either the electrocution incident or the disc herniations, or a combination of both. This decision addresses four determinations of the respondent.
5. The respondent declined liability for these problems as a sequela to his accepted C4/5 and C5/6 disc herniations in a decision dated 18 November 2004 (Q2004/935).
6. In a determination dated 13 October 2005 the respondent denied liability for these problems as a sequela to the electric shock incident (Q2005/675).
7. One of the benefits available under the legislation – the Safety Rehabilitation and Compensation Act 1988 - is for lump sum payment where the person has sustained permanent impairment. These lump sums are calculated by percentages of impairment, usually assigned after medical assessment, in accordance with the relevant Tables called the Guide to the Assessment of Permanent Impairment (the Guide).
8. Mr Gardner claimed for a lump sum payment in his accepted C4/5 and C5/6 disc herniations. In a determination dated 18 November 2004 the respondent determined that Mr Gardner was not suffering from a minimum 10% impairment and denied payment of a lump sum.
9. Mr Gardner also claimed for a lump sum payment in relation his ‘headaches and upper limb condition’. A determination dated 13 January 2006 held that no lump sum payment can be made since initial liability for these conditions has not been accepted (Q2006/114).
10. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1-7 and R1-5.
Issues
11. The issues for this Tribunal to determine are:
· whether the applicant’s headaches resulted from the electrocution incident, and/or are associated with his disc herniations at C4/5 C5/6; and
· whether Mr Gardner’s symptoms of pain and weakness in his right arm are a result of the electrocution incident, and/or are secondary to his disc herniations at C4/5 and C5/6; and
· whether Mr Gardner suffers from any permanent impairment due to his disc herniations at C4/5 and C4/6; and
· whether Mr Gardner is entitled to a lump sum payment in relation to his headaches and upper limb condition; and
· if any of the above are answered in the affirmative, what degree of incapacity Mr Gardner suffers due to that or those conditions.
Mr Gardner’s Evidence
12. Mr Gardner says that he first experienced headaches after the electrocution incident that occurred on 28 August 1992. On that occasion it was a closed camp, no one was allowed to leave the base for four days. Mr Gardner arrived in the canteen about 5.45am and proceeded to turn everything on in the dining room in preparation for breakfast. When he turned the toaster on there was a blue flash and loud bang and he was thrown across the room. Everyone came running. He was taken to Lavarack Barracks medical centre and then transferred by ambulance to the Townsville General Hospital. He thinks that he stayed in the Townsville Hospital for about 36 hours after which time he returned to the camp. However, the records of the hospital record him as being an outpatient.
13. He remained on the Army Barracks, but did not work for the next few days. When his unit went into the field a few days later he was allowed to go home. He recalls his hand being dressed in cream and kept in a glove. He had pain in the shoulder and numbness in his hand and was taking pain killers. From that time Mr Gardner recalls having headaches on a daily basis while he was at work. He would often have two days of headaches and then have a three day period without a headache. After the electrocution incident he was not able to hold onto things because of the pain and numbness in his right hand. Consequently, he had difficulty using the heavy equipment in the kitchen at work and experienced pain while chopping vegetables.
14. On 30 August 1993 Mr Gardner was warming up for a battle fitness test. Whilst heaving himself up over a bar in an attempt to perform a chin up, he experienced sharp pain in his right hand. After this incident his symptoms of numbness and pain became more frequent, the more he used his hand the worse his symptoms became.
15. Mrs Gardner gave evidence that supported Mr Gardner’s claim that he has suffered from headaches and difficulties with his arm from around the time of the electrocution incident, and that these symptoms became worse after the physical training incident.
What is the Cause of Mr Gardner’s Headaches?
16. Mr Gardner has had the benefit of having been reviewed by a number of specialists in relation to his headaches and neck problems.
17. In his report dated 14 November 2003, specialist occupational physician Dr Rowe, opined that Mr Gardner’s intermittent headaches related to the neck injury that occurred at the time of the electrocution incident. He opined that Mr Gardner suffered from tension headaches (Q2005/42 T12).
18. At the hearing neurosurgeon Dr Campbell gave evidence by conference telephone and opined that Mr Gardner’s headaches are likely to be chronic tension headaches secondary to the neck injury he sustained either during the push-ups incident, or after he was thrown to the floor following the electrocution incident. In his report dated 22 November 2005 (Exhibit A5) Dr Campbell explained the pathogenesis of these headaches as being a consequence of the neck muscles having a direct connection to the scalp. He indicated that the fact that the headaches commenced immediately after Mr Gardner’s accident lead him to believe that the diagnosis of chronic tension headache was most likely and he opined that the headaches are unlikely to be migrainous in nature.
19. In his report dated 18 March 2003 (Q2005/42 T10), occupational physician Dr Burke addressed Mr Gardner’s neck pain, lower back pain, and his Ross River Virus infection. Dr Burke did not mention Mr Gardner’s headaches. At the hearing, Dr Burke informed the Tribunal, in evidence by telephone, that he did not recall being told that Mr Gardner suffered headaches.
20. Similarly occupational physician Dr Parkes did not address headaches in his report dated 5 November 2001 (2004/935 T9), and was therefore not in a position to discuss the possible cause of Mr Gardner’s headaches with the Tribunal at the hearing when he gave evidence by telephone.
21. Consultant neurologist Associate Professor Burns prepared a report dated 27 April 2004 (Q2005/42 T15). In it he stated that Mr Gardner suffered from periodic headaches some of which were consistent with being a form of migraine without aura and that they were of a permanent nature. He concluded that his headaches were a separate condition and not a consequence of either his known neck condition or Ross River Virus infection. Assoc Prof Burns noted that the headaches begin in the back of the neck and spread to the temples, always greater on the right, being of a throbbing nature. He reported the headaches have a duration varying from a matter of seconds to up to three days, and that he experiences approximately two per week. The headaches can occur at any time without any specific trigger and have been severe enough on two occasions to attend hospital where he was told they were migraine.
22. At the hearing Assoc Prof Burns gave evidence by telephone. Assoc Prof Burns agreed with Dr Campbell’s opinion that some of Mr Gardner’s headaches may be tension headaches; however he stated that some are also migraine. Dr Burns explained that whilst many people who have migraine develop headaches early in life, it is not rare for migraine headaches to commence after the age of 20 years.
23. Assoc Prof Burns said that it is possible that a headache might occur due to some acute injury, such as what Mr Gardner might have experienced in either of the electrocution or physical training incident. However, he opined such headaches would normally resolve. In relation to tension headaches, Dr Burns said injury does not cause chronic tension headaches, and therefore any tension headaches that Mr Gardner may experience would not be a result of either the electrocution incident or the physical training incident.
24. Assoc Prof Burns explained neurologists are regarded as the diagnosticians in the medical profession whereas neurosurgeons perform the operations and it is usual for them to leave the diagnosis up to the neurologists.
25. Consultant Neurologist Dr Cameron prepared a report dated 5 August 2005 (T35 2006/114). In that report Dr Cameron said that Mr Gardner’s headaches are typical of predominant migrainous disturbance, and could not be related to the two incidents in question. Dr Cameron noted that Mr Gardner has a history of depression and is on a large dose of Prothiaden, an antidepressant agent. Dr Cameron opined a component of his headache disturbance could be related to his psychiatric disturbance. Dr Cameron further ruled out any association with Mr Gardner’s headaches and his cervical spine condition.
26. At the hearing Dr Cameron gave evidence in person. He restated his opinion that most of Mr Gardner’s headaches were of the migraine type. Dr Cameron disagreed with the evidence provided by Dr Campbell. He said that muscular type injuries resolved and Mr Gardner would not have any ongoing problems due to any muscle injury that he might have sustained as a result of being thrown to the floor after he was electrocuted. Further, according to Dr Cameron, there was no evidence that Mr Gardner had sustained any ligamentous injury at the time of the electrocution. Dr Cameron said that physical injury was not a cause of migraine headaches and cervical spine pathology does not trigger migraines.
27. In summary there are two doctors, namely Dr Rowe and Dr Campbell who state that Mr Gardner’s headaches are tension headaches and two doctors, namely Assoc Prof Burns and Dr Cameron who opine that the headaches are predominantly migrainous in character. Dr Rowe is an occupational physician and the Tribunal understands that his area of expertise is not one which includes the diagnosis of the etiology of headaches. Dr Campbell is a neurosurgeon. The Tribunal prefers the opinions of the neurologists, Assoc Prof Burns and Dr Cameron, as these doctors’ have expertise in the area of diagnosis in contrast to Dr Campbell, who as a neurosurgeon, has expertise in treatment rather than diagnosis of neurological conditions. Assoc Prof Burns noted that some of Mr Gardner’s headaches may be tension type headaches, as suggested by Dr Campbell; however he said that these headaches could not have any association with either of the incidents that occurred during Mr Gardner’s service.
28. We find Mr Gardner’s headaches are predominantly migrainous in nature. He may also experience tension headaches from time to time however these have no association with either the electrocution incident or the physical training incident.
What is the Cause of Mr Gardner’s Arm Problems?
29. Dr Rowe noted when he examined Mr Gardner’s upper limbs that his right biceps were wasted and weak (Q2004/935 T12). At the hearing Dr Rowe gave evidence by telephone and told the Tribunal that he came to these conclusions on the basis that Mr Gardner’s left arm measured 34cm and his right arm 32 cm at an equal point, and also because Mr Gardner’s grip strength was 42 kg in the right hand compared to 65 kg in the left hand, when measured with a Jamar Hand Dynamometer. Dr Rowe concluded that Mr Gardner had a C7 nerve root causing weakness in his right arm. Dr Rowe explained that disc herniations in the neck could result in annular tears and fluid in the disc leaking. The result, an irritating chemical reaction, could cause a radiculopathy which resulted in symptoms of the kind Mr Gardner complained of. Dr Rowe conceded on cross examination some of the discrepancies between the measurements in Mr Gardner’s’ upper limbs could be explained by the fact that he is left limb dominant. Dr Rowe also conceded that some of Mr Gardner’s symptoms may be due to normal age related degeneration of his cervical spine, and were not necessarily due to the disc herniations at C4/5 and C5/6.
30. Dr Campbell noted in his report dated 4 April 2005 (Exhibit A1) that his examination of Mr Gardner‘s upper limbs revealed normal power, reflexes and sensation. At the hearing Dr Campbell confirmed that these were his examination findings, however he reiterated his written conclusion that because of the electrocution injury, Mr Gardner sustained nerve damage to his upper limbs. Dr Campbell said he reached this conclusion on the basis of the history he had obtained from Mr Gardner. He specifically relied on Mr Gardner’s statement that he developed symptoms after the electrocution injury.
31. Dr Burke prepared a report dated 18 March 2003 (Q2006/114 T12) in which he stated that he did not find any neurological abnormality when he examined Mr Gardner’s upper limb.
32. Assoc Prof Burns was critical of the findings of Dr Rowe. He pointed out that Dr Rowe is an occupational physician and he made measurements of muscle strength on the basis of dynamometers. He opined that these measurements are not necessarily reliable. Dr Burns explained if someone is not trying then the tests that Dr Rowe performed would not be a true reflection of the patient’s muscle power. He said that the only accurate way of assessing muscle power was to test a person against the physician’s own strength. Assoc Prof Burns noted that Dr Rowe’s examination appeared incomplete, as there was no suggestion in his report that he had measured Mr Gardner’s deep tendon reflexes. Assoc Prof Burns concluded it was unlikely that Dr Rowe’s report provided a true reflection of Mr Gardner’s circumstances.
33. Assoc Prof Burns was also critical of Dr Campbell’s conclusions. Assoc Prof Burns noted that Dr Campbell had found no abnormalities when he examined Mr Gardner’s upper limb, and had based his conclusion that Mr Gardner suffered nerve injury on the basis of history only. Assoc Prof Burns said if nerve damage were present there would be objective signs observable by a medical practitioner. As there were none, Assoc Prof Burns concluded that Mr Gardner does not have any neurological impairment in his upper limbs.
34. Dr Cameron was also critical of the method Dr Rowe had used to measure grip strength. He said that using a dynamometer was a waste of time, as it measured one nerve group only. He agreed with Assoc Prof Burns that the only accurate way of measuring muscle strength was to test a person against the physician’s strength. He said the difference Dr Rowe observed in Mr Gardner’s arm measurements was likely to be due to the fact that he is left hand dominant. He said that another variable that influences the difference is arm diameter is the activities a person engages in. He said muscle wasting is an observation, not a measurement.
35. Dr Cameron concluded, on the basis of the history taken and his examination findings, that Mr Gardner had no neurological deficit in his upper limbs.
36. Dr Cameron had commented upon a nerve conduction studies report, performed by Dr Andrews (Exhibit A6) . Dr Cameron said these studies were virtually useless, as Dr Andrews, in his opinion had used the incorrect nerve root, and his studies demonstrated some contamination.
37. We prefer the opinion of neurologists Assoc Prof Burns and Dr Cameron as they are both experts in the field of neurology and in particular, experts in the diagnosis of neurological disorders. Dr Rowe is an occupational physician, and his findings have been questioned by neurologists Dr Burns and Dr Cameron on the basis that his examination techniques do not necessarily accurately demonstrate signs that could be regarded as indicating there was some neurological deficit. Dr Campbell based his opinion on the history provided by Mr Gardner only. We therefore conclude that Mr Gardner does not suffer any neurological impairment in his upper limbs that could be associated with either the electrocution incident or the physical training incident.
Does Mr Gardner Suffer From Any Permanent Impairment Due to his C4/5 and C5/6 Disc Herniation?
38. Dr Cameron noted Mr Gardner reported persistent neck discomfort and limited neck movements which have persisted since the physical training and electrical exposure incidents. Dr Cameron noted radiological studies performed at the time revealed minimal degenerative changes in the mid-cervical region compatible with early spondylitic degeneration. Dr Cameron said in his opinion these changes were compatible for his age. Dr Cameron said Mr Gardner’s history suggests both incidents may have acted as mild aggravations to his underlying pre-existing cervical spondylosis, causing some short term symptomatic development. Within a matter of months of these events, according to Dr Cameron, that aggravation would have largely resolved to the normal symptomatic cervical spondylitic degenerative process. Dr Cameron said any discomfort Mr Gardner experiences in his cervical spine at this time is related to his underlying cervical spondylosis and that any injuries he suffered in the early nineties has resolved.
39. Dr J Parkes gave evidence to the Tribunal by phone. He examined Mr Gardner on 24 September 2001 for the purpose of preparing a report dated 5 November 2001 (Q2004/935 T9). Dr Parkes opined that the problems due to disc prolapse should have resolved by now and therefore may not be the only factor in causing the symptoms Mr Gardner now attributes to his neck condition.
40. In his report dated 28 July 2004 (Q2005/42 T16) Assoc Prof Burns opined that Mr Gardner does not suffer any impairment as a result of his C4/5 and C5/6 disc herniations. Assoc Prof Burns said that such disc herniations are common and very often an incidental finding. According to Assoc Prof Burns, the presence of such herniations does not necessarily result on restriction of neck movement, impairment of nerve root function or spinal cord dysfunction. Assoc Prof Burns stated the restriction Mr Gardner has in his neck movement is not due to physical disease of his cervical spine.
41. Whist Dr Rowe opined in his written report that Mr Gardner had some neck problems as a result of his C4/5 C5/6 disc herniations ( 2005/42 T11 ) in his oral evidence to the Tribunal he conceded that normal degenerative changes could be contributing to his neck pain.
42. Like Assoc Prof Burns, Dr Campbell opined that the degenerative changes seen on Mr Gardner’s Medical Resonance Imaging (MRI) scan at the time of his injury were normal for a person of Mr Gardner’s age. Dr Campbell however opined that these degenerative changes would not have contributed to his impairment.
43. In his report dated 4 April 2005 (2005/275 T6 ) Dr Campbell noted that Mr Gardner has disc herniations at C4/5 ad C5/6, however indicated that Mr Gardner’s ongoing neck problems are the result of chronic soft tissue musculo-ligamentous injury to the cervical spine. At the hearing Dr Campbell confirmed that this was the likely cause of Mr Gardner’s ongoing neck problems, in his opinion.
44. In summary then, the evidence of two neurologists is that Mr Gardner would not be suffering any symptoms or signs due to his accepted neck condition of C4/5 C5/6 disc herniations. Dr Campbell attributes the symptoms Mr Gardner currently suffers in his neck to chronic musculo-ligamentous injury, not to C4/5 C5/6 disc herniations. Dr Rowe is the only doctor that has suggested that Mr Gardner is suffering from any symptoms due to his accepted C4/5 5/6 disc herniations, and he accepts that this condition is not necessarily the cause of all of Mr Gardner’s neck pain. We conclude that Mr Gardner suffers no ongoing signs or symptoms due to his C4/5 C5/6 disc herniations.
Is Mr Gardner Entitled to a Lump Sum Payment for Incapacity for his Headaches and Right Arm Condition?
45. The respondents drew the Tribunal’s attention to Lees and Comcare (1999) 29 AAR 350 and Oudyn and Australian Postal Corporation [2002] AATA 72 (7 February 2002), which they suggest are authority for the proposition that an application for permanent impairment can be submitted where no determination for liability has been made.
46. Even if the circumstances of the matter before us was a situation where such a determination was appropriate it is still necessary to determine a causal link between a person’s condition and their work, for liability to be found. See Coffey V Aust Post Corp Q2002/1000 [2005] AATA 597 at [32]; Coward v Military Compensation and Rehabilitation Service [2006] FCA 840 at [23].
47. We find that Mr Gardner’s headaches are predominantly migrainous and have no association with his army work. It has also been suggested that some of his headaches may be of a tension type; however these too have no association with his army work.
48. In relation to his arm complaint, we find that Mr Gardner has not suffered a neurological injury as a consequence of either of the two incidents in question.
49. We consider that Mr Gardner is not entitled to any lump sum payment in relation to any incapacity that results from either headaches or a right upper arm condition.
Decision
50. The Tribunal affirms the decision under review.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
L. Pendle, AssociateDate/s of Hearing 19-20 June 2006
Date of Decision 18 August 2006
For the applicant Mr Ashton, of Counsel
D’Arcys Solicitors
For the respondent Mr Clark, of Counsel
Sparke Helmore, Solicitors
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