GAVIN McLENNAN and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2010] AATA 366

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL        )

)         No: 2009/0974

Veterans' Appeals Division  )

Re: Gavin McLennan
Applicant

And: Military Rehabilitation and Compensation Commission
Respondent

CORRIGENDUM

TRIBUNAL:Dr K S Levy RFD, Senior Member and Dr M Denovan, Member

DATE:                      20 May 2010

PLACE:                   Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

Table 8.1 of Part 1 of the Comcare Guide, 2^nd edition included at pages two and three of the decision is to be replaced by Table 8.1 of Part 2 of the Comcare Guide, 2^nd edition which follows. 

TABLE 8.1:      Disorders of the Oesophagus, Duodenum, Stomach, Small Intestine, Pancreas, Colon, Rectum and Anus

(Percentage Whole Person Impairment)

%

DESCRIPTION OF LEVEL OF IMPAIRMENT

0

Symptoms present but no anatomical loss or alteration

5

Symptoms and/or signs present AND there is anatomical loss or alteration BUT continuous treatment is not required AND weight and nutrition are maintained at a steady level

OR

Mild incontinence of gas or liquid stool

10

Objective signs of disease present AND at least ONE of the following:

·                  dietary restrictions needed for control

·                  drugs needed for control

·                  weight loss of up to 10% of desirable weight

15

Objective signs of disease present AND at least TWO of the following:

·                  dietary restrictions needed for control

·                  drugs needed for control

·                  weight loss of up to 10% of desirable weight

20

Partial faecal incontinence requiring continual treatment

OR

Objective signs of disease present AND ALL of the following:

·                  dietary restrictions needed for control

·                  drugs needed for control

·                  weight loss of up to 10% of desirable weight

25

Objective signs of disease present AND ONE of the following:

·                  dietary restrictions and drugs produce partial but incomplete control

·                  weight loss of 10 to 20% of desirable weight

30

Objective signs of disease present AND BOTH of the following:

·                  dietary restrictions and drugs produce partial but incomplete control

·                  weight loss of 10 to 20 percent of desirable weight

40

Objective signs of disease present with TWO of the following:

·                  disturbed bowel habit

·                  pain (periodic or continual)

·                  continual manifestations (for example, fever or anaemia)

·                  weight loss of 10 to 20 percent of desirable weight

45

Complete faecal incontinence

50

Objective signs of disease present with ALL of the following:

·                  disturbed bowel habit

·                  pain (periodic or continual)

·                  continual manifestations (for example, fever or anaemia)

·                  weight loss of 10 to 20 percent of desirable weight

55-75

Objective signs of disease present and a combination of the following:

·                  severe persistent disturbance of bowel habit

·                  severe persistent pain

·                  constitutional manifestations

·                  weight loss of more than 20 percent of desirable weight

·                  severe limitation of activity

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

Senior Member

1.

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 366

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0974

VETERANS' APPEALS  DIVISION		)
Re		GAVIN McLENNAN

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member and
Dr M Denovan, Member

Date18 May 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Military Rehabilitation and Compensation Commission – The degree of permanent impairment suffered by the applicant – Condition less than the requisite degree of whole person impairment required to qualify for lump sum compensation for permanent impairment – Decision affirmed.    

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Re Florit and Comcare (2004) 81 ALD 774

REASONS FOR DECISION

18 May 2010 Dr K S Levy RFD, Senior Member and
Dr M Denovan, Member    

INTRODUCTION

2.      Gavin McLennan served in the Royal Australian Airforce (RAAF) from January 1977 to April 1989 and from October 1989 to March 1992.  On 15 June 2007, the Military Rehabilitation and Compensation Commission (the MRCC) accepted liability for irritable bowel syndrome as a sequel to his accepted condition of panic disorder with agoraphobia.

3.      On 27 June 2007, Mr McLennan lodged a claim for lump sum compensation for permanent impairment under ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for irritable bowel syndrome.

4.      On 30 June 2008, the Respondent denied liability on the basis that the applicant’s impairment from irritable bowel syndrome was less than 10%.

5.      Mr McLennan claims that he suffers from 20% impairment by reference to Table 8.1 of Part 2 of the Comcare Guide, 2^nd edition.  The MRCC, says that the appropriate level is 5% by reference to the Table in the Guide.

ISSUES

6.      The issue before us is what, if any, is the degree of permanent impairment of Mr McLennan resulting from irritable bowel syndrome.

THE LEGISLATION

7.      In order to be eligible for lump sum payment under the Act, the degree of whole person impairment must be stabilised at 10% or more.

8.      Medical experts who have assessed Mr McLennan’s irritable bowel syndrome have used Table 8.1 of Part 2 of the Guide, which is the accepted appropriate table.  Table 8.1 of the Guide, so far as it is relevant to this appeal, provides:

Table 8.1:       Upper Digestive Tract:

Oesophagus, Stomach, Duodenum, Small Intestine and Pancreas

% WPI	Primary Criteria	Secondary Criteria
0	Symptoms of upper digestive tract disease with or without anatomic loss or pathologic alteration present.	Continuous drug treatment not required to control symptoms.
10	Symptoms of upper digestive tract disease, with anatomic loss or pathologic alteration present.	ONE of the following: ·     Continuous drug treatment required to control symptoms, signs or nutritional deficiency; ·     Appropriate dietary restrictions required to control symptoms or signs.
20	Symptoms of upper digestive tract disease, with anatomic loss or pathologic alteration present.	BOTH of the following: ·     Continuous drug treatment required to control symptoms, signs or nutritional deficiency; ·     Appropriate dietary restrictions required to control symptoms or signs.
30	Symptoms of upper digestive tract disease, with anatomic loss or pathologic alteration present.	Any ONE of the following: ·     Continuous drug treatment does not completely control symptoms, signs or nutritional deficiency; ·     Appropriate dietary restrictions do not completely control symptoms, signs or nutritional deficiency; ·     Weight loss with a BMI <20
40	Symptoms of upper digestive tract disease, with anatomic loss of pathologic alteration present.	Any TWO of the following: ·     Continuous drug treatment does not completely control symptoms, signs or nutritional deficiency; ·     Appropriate dietary restrictions do not completely control symptoms, signs or nutritional deficiency; ·     Weight loss with a BMI <20
50	Symptoms of upper digestive tract disease, with anatomic loss or pathologic alteration present.	ALL of the following: ·     Continuous drug treatment does not completely control symptoms, signs or nutritional deficiency; ·     Appropriate dietary restrictions do not completely control symptoms, signs or nutritional deficiency; ·     Weight loss with a BMI <20
60	Symptoms of upper digestive tract disease, with anatomic loss or pathologic alteration present.	ALL of the following: ·     Continuous drug treatment has little effect on symptoms, signs or nutritional deficiency; ·     Appropriate dietary restrictions have little effect on symptoms, signs or nutritional deficiency; ·     Assistance required with most or all Activities of Daily Living; ·     Weight loss with a BMI <20
70	Symptoms of upper digestive tract disease, with anatomic loss or pathologic alteration present.	ALL of the following: ·     Severe impairment of nutritional status uncontrolled by any treatment or dietary restrictions; ·     Assistance required with all Activities of Daily Living; ·     Weight loss with a BMI <20.

WHAT DEGREE OF PERMANENT IMPAIRMENT IF ANY DOES THE APPLICANT SUFFER AS A RESULT OF IRRITABLE BOWEL SYNDROME?

9.      Mr McLennan told us that he suffers from incontinence twice a week on average.  Because Mr McLennan rarely leaves his home he is able to change his clothing and have a shower on these occasions.  He never wears an incontinence pad.  On most occasions the leakage is confined to his clothing and only rarely does the leakage affect his sheets or furniture.  For this reason, and to avoid the odour, Mr McLennan prefers not to use incontinence pads.  Mr McLennan takes Somac to control the abdominal pain and cramping that results from his irritable bowel.

10.     Mr McLennan has been reasonably consistent in the accounts he has given to medical practitioners.  Gastroenterologist Dr Whiting in his report dated 10 August 2005, said that Mr McLennan experienced faecal incontinence approximately 12 times over a three year period and suffers from intermittent abdominal pain of short duration.  In his report dated 14 October 2009, Prof Michael O’Rourke said that Mr McLennan’s main symptoms were pain and constipation.  The pain occurs twice a week for twenty minutes or so.  Prof O’Rourke noted that Mr McLennan did not mention faecal leakage as one of his principal problems. 

11.     Prof O’Rourke gave evidence by phone at the hearing.  He questioned the validity of Mr McLennan’s claim that he suffered from faecal incontinence. Prof O’Rourke said that on examination Mr McLennan had no objective signs of faecal incontinence.  Prof O’Rourke explained that objective signs of faecal incontinence would include peri-anal irritation and abnormal anal sphincter tone.  Prof O’Rourke assessed Mr McLennan’s impairment with reference to Table 8.1 at 5%.

12.     Mr McLennan’s treating specialist for irritable bowel syndrome is Gastroenterologist Dr McIntyre.  Dr McIntyre has provided two very brief reports, dated 20 October 2008 and 12 January 2010.  Dr McIntyre reported Mr McLennan as having abdominal pain, urgency and occasional incontinence.  Dr McIntyre had, in his two reports assessed the applicant as having 40% and 20% impairment under Table 8.1 of the Guide.

13.     Dr McIntyre gave evidence by phone at the hearing.  He told us that he had treated Mr McLennan for both irritable bowel syndrome and polyps.

14.     Dr McIntyre confirmed that there were no objective symptoms of irritable bowel syndrome, which was a diagnosis of exclusion.  Dr McIntyre explained that as Mr McLennan’s incontinence was of an ‘urge’ nature and occurred only twice a week, it was not surprising that he showed no signs of abnormal sphincter tone or peri-anal irritation.

15.      Dr McIntyre explained that low dose tricyclics antidepressants are the only treatment available for urge incontinence.  Dr McIntyre said that he had recommended that Mr McLennan’s general practitioner trial this treatment.  He was unsure whether Mr McLennan was currently continuing this treatment or whether he had any success in the past with such treatment.

16.     With expert evidence, the opinions of the various doctors must be able to convince the Tribunal of the scientific or other intellectual basis of their professional conclusions (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] per Heydon JA. We found the evidence of Prof O’Rourke far more comprehensive than that of Dr McIntyre who seemed evasive at times when answering the Tribunal’s questions. We accept that Mr McLennan suffers from intermittent abdominal pain approximately twice a week, controlled by Somac, and faecal incontinence approximately twice a week, for which he takes no treatment, and does not use incontinence pads. That is the evidence that Mr McLennan gave both to this Tribunal and to Drs McIntyre, Whiting and Prof O’Rourke.

17.     The task for the Tribunal is to determine which impairment rating best applies to Mr McLennan’s condition.  It can been seen from Table 8.1 that for the applicant to be assessed at 10% whole person impairment or greater, he must either:

(a)have “objective signs” of irritable bowel syndrome plus one or more factors; or,

(b)have partial faecal incontinence requiring continual treatment.

18.     We were told by Dr McIntyre that irritable bowel syndrome is a condition that has no objective signs.  That evidence is consistent with evidence of Prof O’Rourke and also with that previously before the Tribunal in relation to matters of the same condition.  In the matter of ReFlorit and Comcare (2004) 81 ALD 774 the Tribunal noted that

the adjective “objective” is used to refer to a sign or symptom than can be perceived by others in addition to the patient.  A symptom only the patient can perceive is “subjective”.

19.     We agree that there are no objective signs of irritable bowel syndrome.  For Mr McLennan to attract an impairment rating under Table 8.1 of the guide above 10%, we must be satisfied that he has partial faecal incontinence requiring continual treatment.

20.     Whilst there is no objective evidence that Mr McLennan suffers from faecal incontinence, Dr McIntyre was able to give a plausible explanation as to why this was so.  We accept therefore that Mr McLennan has faecal incontinence, as he described, about twice a week.  The evidence before us is that he takes no treatment for this incontinence, he does not even make use of an incontinence pad.  The only medication he takes for irritable bowel syndrome is Somac, a drug we were told that is used to abate abdominal cramps only, not faecal incontinence.  Mr McLennan cannot be said to require continual treatment for his incontinence, which by his own account occurs approximately twice a week.

21.     We find that the weight of medical evidence points to Mr McLennan having mild incontinence and that he is suffering from 5% whole person impairment when assessed by Table 8.1 of the Guide.

DECISION

22.     The Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member and Dr M Denovan, Member

Signed: ....................[Sgd].........................................................
              Kate Slack, Research Associate

Date/s of Hearing  19 April 2010
Date of Decision  18 May 2010
Applicant was self represented
Solicitor for the Respondent     Leisa Pendle, Australian Government Solicitor