Garry Downes and Military Rehabilitation and Compensation Commission

[2014] AATA 688

[2014] AATA 688  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5448
Re	Garry Downes
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

Decision

Tribunal	Dr M Denovan, Member
Date	19 September 2014
Place	Brisbane

Vary that part of the reviewable decision dated 27 August 2013, which found that
Mr Downes’ resting joint pain is allocated a rating of zero, and substituted is the decision that he is allocated a rating of two for resting joint pain.  The remainder of the decision is affirmed. The matter is remitted to the respondent, to calculate the change in the amount of compensation, if any, payable to the applicant.

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

Dr M Denovan, Member

CATCHWORDS

COMPENSATION – Guide to Determining Impairment and Compensation (GARP M) – the MRCA Guide – lifestyle rating – rating for resting joint pain – impairment rating – decision partially substituted for new rating – remainder of decision remitted to respondent for calculation of compensation.

LEGISLATION

Military Rehabilitation and Compensation Act 2004 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth) s 24

Veterans’ Entitlements Act 1986 (Cth)

SECONDARY MATERIALS

Guide to Determining Impairment and Compensation (GARP M)

Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1

REASONS FOR DECISION

Dr M Denovan, Member

19 September 2014

INTRODUCTION

1. The applicant in these proceedings is Mr Garry Downes (“the applicant”). Mr Downes enlisted in the Royal Australian Air Force (“RAAF”) on 7 August 1989 and discharged through resignation into the Inactive Reserve Forces on 10 January 2011. All three Acts administered by the Department of Veterans’ Affairs (“DVA”) cover his service period: the Military Rehabilitation and compensation Act 2004 (Cth) (“MRCA”), the

   
   Safety Rehabilitation and Compensation Act 1988

   (Cth) (“SRCA”), and the

   
   Veterans’ Entitlements Act 1986

   (Cth) (“VEA”). Liability for a number of medical conditions has been accepted, as outlined below:

   MRCA

   (a)Thoracic spondylosis

   SRCA

   (a)Fractured right scaphoid;

   (b)Fractures to left shoulder and right wrist;

   (c)Self-limited episode of mild sinus barotrauma; and

   (d)Spondylosis of the lower back.

   VEA

   (a)Lumbar spondylosis;

   (b)Cervical spondylosis;

   (c)Sinus barotrauma

   (d)Fracture of the left clavicle;

   (e)Fracture of the right wrist;

   (f)Sensorineural hearing loss of the right ear; and

   (g)Bilateral tinnitus.

2. Mr Downes sought permanent impairment (“PI”) compensation pursuant to the relevant provisions of the MRCA. The degree of impairment for each accepted condition is assessed according to a statutory instrument known as the Guide to Determining Impairment and Compensation (GARP M) (“the Guide”). The Guide expresses the extent of medical impairment suffered by a person by way of impairment points, on a scale from zero to 100. The Guide also contains the criteria to be used in assessing the impact of a person’s accepted conditions on the person’s lifestyle. This is expressed in a numerical lifestyle rating from zero to seven. The amount of compensation a person is to be entitled to will be determined by a statutory formula, which uses the combined medical impairment rating and the lifestyle rating determined by reference to the Guide.

3. On 2 April 2013 a determination was made by the respondent, which accepted liability to pay compensation for permanent impairment in respect of Mr Downes’ accepted conditions. It was decided that Mr Downes had a combined impairment rating of 16 points and a lifestyle rating of two. In the calculations for the combined impairment rating, a rating of zero was given was resting joint pain. The date of effect of the determination was 28 February 2012, which was also the date which the claim was made.

4. On 27 August 2013, the respondent made a decision that subsequently varied the date of acceptance to 12 December 2011, on the basis that this was the date the conditions were deemed permanent and stable by Professor Black.

5. Mr Downes applied for review of the decision by this Tribunal on 22 October 2013.

6. Mr Downes believes he should have been allocated five impairment points for resting joint pain, and a lifestyle rating of three. In the decision under review, Mr Downes was allocated zero impairment points for resting joint pain; however the respondent is now prepared to concede two impairment points for resting joint pain. The respondent contends the lifestyle rating of two, allocated in the decision under review is appropriate.

7. I must decide what the appropriate impairment ratings are for resting joint pain and lifestyle, respectively.

   CONSIDERATION

   Resting joint pain

8. Mr Downes attended the hearing and gave evidence. He told me he had pain, which he referred to as “resting joint pain”, in the centre of his lower back, radiating to his left hip and left groin, as well as to his stomach wall. He said that he is currently undergoing investigations to determine whether his pain is of neuropathic origin. He was taking regular pain relief medication, however he is not taking this now due to the effects the medication has on his gastritis. He said the amount of resting joint pain he suffers depends on the activities he engages in. He said that sitting for a long period of time makes the resting pain in his back hip and groin worse. He asserts that the static nature of his current job makes his pain worse, and it is better for him when he is able to get up and move around.  If he uses a crow bar in the yard, he suffers from pain in his shoulder and wrists. He said his pain is constantly present, but the degree and intensity varies.

9. Mr Downes does have some intermittent pain in his neck, wrist and shoulders; however he does not regard these pains as part of his resting joint pain.

10. Resting Joint Pain is assessed using Table 3.4.1 of the Guide. It reads as follows:

Other Impairment

        Table 3.4.1

RESTING JOINT PAIN

Impairment

Ratings

Criteria

NIL

Pain in any joint, or combination of joints, that is not usually present at rest.

TWO

·     Pain in any joint, or combination of joints, that is often present at rest but which is mild.

·     Pain in the back that limits comfortable sitting to less than 30 minutes at a time.

FIVE

·     Pain in any joint, or combination of joints, that is often present at rest but which improves after several hours rest or responds to medication or to therapeutic measures.

·     Pain in the back that limits comfortable sitting to less than 10 minutes at a time.

TEN

Severe pain in any joint, or combination of joints, that is often present at rest but which does not respond adequately to medication or to therapeutic measures

FIFTEEN

Severe pain in any joint, or combination of joints, that is always present at rest but which does not respond adequately to medication or to therapeutic measures and which regularly interferes with sleep.

Only one selection is to be made from this table for pain in any joint or combination of joints.

No age adjustment permitted for this table

1. Mr Downes referred to the determination of the DVA of 23 February 2011, in which five impairment points were allocated for resting joint pain. Mr Downes argues that there has been no improvement in his condition since that time, and therefore contends that five impairment points for resting joint pain is appropriate now.

2. For the respondent, Mr Clarke contends that when the DVA made the decision referred to, no supporting medical evidence was relied on, and thus the decision was made arbitrarily and in error.

3. When allocating impairments points with reference to the Guide, reliance is placed on current medical reports and opinions. Unlike the assessment of lifestyle, there is no provision in the Guide or any form of self-assessment.

4. It is not apparent to me what, if any, medical evidence the DVA delegate relied upon when deciding Mr Downes should be allocated five impairment points in the decision

   
   

   Mr Downes referred to. That decision was made pursuant to the VEA, and in deciding the appropriate assessment to be used in the decision under review, I must rely on relevant medical information and reports relevant to the time period considered. An earlier decision made by a delegate of the respondent is not binding on this Tribunal.

5. Consultant Orthopaedic surgeon Dr Khursandi has assessed Mr Downes on a number of occasions and prepared a number of reports. In his report dated 22 February 2013,

   
   

   Dr Khursandi opined that Mr Downes had no backache after sitting for one hour. This information, in combination with other aspects of that report, indicates the applicant attracted zero impairment points from Table 3.4.1 of the Guide. Following this,

   
   

   Mr Downes asked for review of the decision and the respondent commissioned a further report from Dr Khursandi, which addressed specifically the issue of resting joint pain. In that supplementary report provided by Dr Khursandi in February 2014, he said that after reviewing further medical material and summons records, he now considered the appropriate rating is two from Table 3.4.1.

6. Dr Khursandi gave evidence by telephone at the hearing. He explained that there are two medical interpretations of what constitutes ‘resting joint pain’ in the spine. He said it is sometimes regarded as pain that is present only when a person is lying down. Alternatively, some practitioners’ considerer resting joint pain in the spine to include pain present when a person is either sitting or standing. In assessing the applicant’s resting joint pain, Dr Khursandi used the most generous interpretation of what constitutes resting joint pain.

7. In relation to where a person would experience resting joint pain in the lower spine,

   
   

   Dr Khursandi said that it is that pain which is felt in the lower back. He explained that pain that is referred and felt in the groin, stomach or hip is not resting joint pain but rather it is categorised as neurological pain.

8. Dr Khursandi noted Mr Downes did not meet the second criteria for an impairment rating of two points. Pursuant the introduction to the Guide, when there is more than one criterion for a point allocation, only one criterion needs to be satisfied to attract the impairment rating.

9. Whilst there is no onus of proof placed on any part under the MRCA, there is an obligation to produce material in support of an application. Mr Downes has not provided any medical material that supports his contention that the allocation of impairment points from Table 3.4.1 should be any more than is suggested by Dr Khursandi. Mr Downes did provide a brief report from Sports Physician Dr Sauders, dated 6 August 2014. That report did not refer to resting joint pain. Even if Dr Saunders had an opinion that varied from that of Dr Khursandi, unless there are extremely good reasons to do otherwise, the opinion of the more specialised doctor is preferred by the Tribunal. Dr Khursandi advised the Tribunal that although Dr Saunders may have some post graduate qualifications, he was not a medical specialist.

10. Although Mr Downes experiences pain at rest, the medical evidence before me is that much of that pain is neuropathic in origin, and does not originate from his joints. In his report dated 29 October 2012, orthopaedic surgeon Dr David Hayes indicated

    
    

    Mr Downes likely suffered from neuralgic pain related to his lumbosacral spine. It was also the applicant’s evidence that he is currently undergoing investigation for a neuropathic origin of his pain. It can therefore not be assessed under Table 3.4.1.

    
    

    Mr Downes is also currently suffering from gastrointestinal symptoms that are unrelated to any condition currently accepted as service caused. It may be that some of the pain he describes is related to that condition. Although Mr Downes experiences pain in his hip, groin and stomach when at rest, the medical evidence before me indicates that this is not resting joint pain. On the basis of the medical information before me, I accept that the appropriate rating from Table 3.4.1 for Mr Downes is two.

    Lifestyle rating

11. Lifestyle ratings are used to assess the impact the accepted conditions have on the lifestyle of a person. Consideration is given to the way the person’s conditions limits or prevents fulfilment of a role that is reasonable for a person of the same age who has not been deemed to have an accepted condition. The impact of impairment on lifestyle is determined by reference to four components of that veteran’s life: personal relationships, mobility, recreational and community activities, and employment and domestic activities.[1]  A rating is given for each of these four components, averaged and then rounded to the nearest whole number to determine the final lifestyle rating.

    [1] Only the higher rating given to domestic activities and employment is used in the assessment of lifestyle.

12. Three methods of assessing lifestyle effects exist, as explained in the Guide. The first option allows the veteran to self-assess the effects of their accepted conditions by completing a lifestyle rating assessment form. The second method is to allocate a rating based on the level of medical impairment. The third method is for the determining authority to use the information included in the lifestyle questionnaire, along with other relevant information, to allocate ratings from the Lifestyle Tables 22.1-22.5 included in the Guide.

13. It is expected that the self-assessed lifestyle rating will broadly be consistent with the level of total combined impairment. A determining authority may reject a self-assessment of lifestyle rating if it overestimates the level of rating that is broadly consistent with the level of impairment from accepted conditions.

14. Mr Downes provided a self-assessment, which gave a lifestyle rating of three. The respondent contends that the applicant’s self-assessment does not appropriately reflect the level of impairment suffered by the applicant as a result of his accepted conditions.

15. There is no dispute between the respondent and Mr Downes as to the appropriate rating for the personal relationships, and mobility components of the lifestyle rating. Both parties agree that a rating of two for each of these components is appropriate.

16. The respondent contends that the appropriate rating for recreational and community activity from Table 22.3 is two and the appropriate rating for employment activities from Table 22.5 is three. Mr Downes contends he should be rated three for recreational and community activities and four for employment activities.

17. Table 22.3 and 22.5 read as follows:

Lifestyle Effects

Table 22.3

RECREATIONAL AND COMMUNITY ACTIVITIES

Ratings

Criteria

NIL

Able to undertake the full range of usual recreational pursuits and community activities.

ONE

Intermittent interference with recreational pursuits and community activities. Between episodes is able to continue with the range of accustomed recreational pursuits and community activities.

TWO

Mild but constant interference with accustomed recreational pursuits and community activities, but is able to continue with them — even if less frequently — or to enjoy alternatives.

THREE

Unable to continue some accustomed recreational pursuits and community activities, for example:

·     competition sporting activities (golf, tennis, bowls, etc) but is still able to enjoy most other activities (camping out, hobbies, going visiting, watching sport, etc);

·     unable to perform some community or voluntary activities involving physical activity (eg working bees) but is still able to participate in most other activities including welfare work, fund raising work etc.

FOUR

Unable to take part in formerly favoured recreational pursuits, leisure and community activities, but less physical activities are possible, for example:

·     restricted to generally non-active interests (eg music, art, stamp or coin collecting, attending clubs, etc); and

·     unable to participate in accustomed activities (eg camping, going for long walks, fishing, voluntary activities such as meals on wheels).

FIVE

Greater reduction in the number and kind of recreational activities which can be undertaken; some assistance is needed to undertake those which are still possible, for example:

·     can only visit or go out if taken to and from destination;

·     finds doing a hobby or relaxing (for example, stamp collecting, art & crafts, playing or listening to music, playing cards, etc.) difficult to enjoy due to pain, suffering, or loss of dexterity.

SIX

Able to engage in only a very few satisfying recreational activities. Restricted to a few passive activities such as watching TV, listening to radio, reading or receiving visitors.

SEVEN

Unable to take part in any recreational activities.

One rating from this table is to be selected.

No age adjustment permitted for this table

Lifestyle Effects

Table 22.5

EMPLOYMENT ACTIVITIES

Ratings

Criteria

NIL

Able to engage in usual employment.

ONE

Able to carry out usual employment that is affected intermittently.

TWO

Able to follow accustomed employment but difficulty is experienced in carrying out full range of occupational activities.

THREE

Unable to follow accustomed employment without modification to workplace, provision of aids or restructuring of tasks.

FOUR

Either unable to work full time in normal occupation, or has had to change occupation or number of hours worked, or both, because of the accepted conditions.

FIVE

Unable to work.

One rating from this table is to be selected.

No age adjustment permitted for this table

1. I first considered recreational activities. Mr Downes said he drives one hour each way to work. He has a manual car and driving effects his back pain, however he still manages to work four to five days a week. It is clear from this that Mr Downes is still capable of transporting himself to community and recreational activities.  Mr Downes lives on acreage and spends approximately half a day each weekend tending to his garden. He claims this is therapeutic, and one of his great passions in life. He has a self-propelled lawn mower, and various pieces of other equipment, including a crow bar, to help him manage his large parcel of land. Much of his land is landscaped.  He also enjoys arts, music and he plays the guitar. He no longer engages in golf, cricket or surfing due to the fact that such activities would aggravate his pain. He has sold his ‘Malibu’ surfboard. He admitted under cross examination he is still capable of preforming these activities, however prefers to avoid them so as not to aggravate his pain. He still regularly uses a body board to participate in body boarding activities. He has been repainting his own house over the last few months. This does cause some aggravation of his pain.

2. I consider the appropriate rating from Table 22.3 is two. In making this finding I take into account Mr Downes’ evidence which was that, although he is capable of performing most activities, he modifies his life so as to avoid aggravating his pain. It is not unusual for people of Mr Downes’ age to experience some pain and discomfort following sporting activities, such as golf and tennis. No doubt Mr Downes experiences a degree of pain greater than the average if he engages in these types of activities. However, I also take into consideration Dr Khursandi’s evidence given at the hearing, which was that

   
   

   Mr Downes’ medical conditions are relatively mild, and not the other types of activities that Mr Downes regularly engages in, such as body boarding and maintaining his large landscaped garden. I do not accept that Mr Downes is unable to perform recreational activities that he would otherwise still be engaging in, but for his accepted conditions.

1. In relation to his employment, Mr Downes claims to have had to change occupations because of his conditions. Due to his cervical injuries, he is unable to fly in high performance aircraft that use an ejection seat. This forced him to change occupation in the RAAF, and he was unable to pursue a path in flying related roles. He claims this affected both his promotion prosects and his job satisfaction. Prior to his injuries,

   
   

   Mr Downes said he was performing a job that was mostly a desk job, however it included his role in flying in an aircraft about once a month.

2. He more recently was working five days a week until June 2014, when he commenced a trial program, which involved having Wednesdays off, to allow him to rest and exercise. He claims the midweek rest has assisted him.  He provided a brief report from his general practitioner Dr K Lynch, who proposed the three month trial. For the respondent,

   
   

   Mr Clarke contends that the reduction in Mr Downes’ working hours commenced only after his claim was on foot, and the reduction was motivated, not by medical necessity, but rather by his understanding of the lifestyle tables, in particular, Table 22.5.

3. I consider the appropriate rating from Table 22.5 for employment activities to be two. Given Mr Downes was successfully working five days a week prior to this hearing, I am not persuaded that he permanently needs to change the number of hours or days worked due to his medical incapacity. I accept that he uses a special chair and desk, provided especially for him at work, and I have no doubt this assists his comfort, however I am not persuaded that without the modifications to his desk and chair he would be unable to continue in his usual desk job. Mr Downes left his work in the RAAF voluntarily – he was not medically discharged. He now works in a desk job performing similar tasks to that which he was performing when serving in the RAAF. Although it is unfortunate that he is unable to participate in flights, this was only a small component of his working hours, and in essence he is still capable of performing similar work to that which he was performing before he suffered from his medical impairments. There is no evidence to support Mr Downes claim that, but for his accepted medical conditions, he would now be enjoying the benefits of promotion in the RAAF.

4. Although I consider that the appropriate rating from Table 22.5 is two, I will accept the submission of the respondent, and make a finding that Mr Downes is given a rating of three from Table 22.5.

5. A rating of two from Tables 22.1 to 22.3, and a rating of three from Table 22.5, results in an overall lifestyle rating of two. I find that is the appropriate lifestyle rating for

   
   

   Mr Downes.

6. This is consistent with the expected lifestyle rating for a person with a total combined impairment of 18, provided by Table 23.1 in the Guide. Table 23.1 provides a guide as to what lifestyle ratings are to be expected with the relative total medical impairment ratings.

7. For a combined medical impairment of either 16 or 18 points, the appropriate lifestyle rating is regarded as one or two. I note that to be allocated a lifestyle rating of three, it is usual for a person to have a combined medical impairment of at least 30 points, which is just under double the total impairment points allocated to Mr Downes. I understand that exceptions to Table 23.1 are allowed, however consistency is important. I consider that to make an exception from the lifestyle rating provided in Table 23.1, there would generally be medical evidence to support such a finding. None of the medical reports before me suggest that Mr Downes’ lifestyle has been impacted exceptionally severely compared with others with a similar level of impairment.

   DECISION

8. The Tribunal varies that part of the decision under review dated 27 August 2013, which found that the applicant had a rating of zero for resting joint pain, and substitutes its decision that a rating of two is given for resting joint pain. The remainder of the decision under review is affirmed.

9. The matter is remitted to the respondent, to calculate the change in the amount of compensation payable, if any, to the applicant.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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

Associate

Dated 19 September 2014

Date of hearing	3 September 2014
Applicant	In person
Counsel for the Respondent	Charles Clark and Peter Crethary, Dibbs Barker
Solicitors for the Respondent	Alexa Reith, Dibbs Barker