Giddy and Comcare
[2005] AATA 498
•31 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 498
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/388
GENERAL ADMINISTRATIVE DIVISION ) Re DENNIS GIDDY Applicant
And COMCARE Respondent
DECISION
Tribunal Dr J D Campbell, Member Date31 May 2005
PlaceSydney
Decision The decision under review is set aside and in substitution thereof, the Tribunal finds that:
a) the Applicant has suffered an aggravation of his pre-existing hypertension as a consequence of his work related injury; and
b) the Applicant is entitled to payment of compensation for hypertension pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988; and
c) the Applicant is entitled to costs in this matter, pursuant to the Tribunals Practice Direction.
[sgd] Dr J D Campbell
Member
CATCHWORDS
Workers Compensation - work related back injury - fusion - weight increase - pain - issue of exercise - use of medication - diet - pre-existing hypertension - aggravation/acceleration - continuing treatment
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, section 4, 14
CASE LAW
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
REASONS FOR DECISION
31 May 2005 Dr J D Campbell, Member 1. In this application Mr Giddy seeks a review of Comcare’s determination dated 21 February 2003, which affirmed an earlier determination dated 15 October 2002 that disallowed Mr Giddy’s claim for aggravation of hypertension.
2. It is also noted that during the course of the proceedings Comcare issued a reviewable decision of own motion, pursuant to section 62(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) on 3 November 2004, which revoked approval for payment for the following medications, namely Norvasc, Avapro, Coversyl and Lipitor. I note that both parties had considered this issue, with any claim for such medications, pursuant to section 16 of the Act, being considered and dependent upon Mr Giddy’s claim for compensation for hypertension, pursuant to section 14 of the Act, being a necessary preliminary determinant.
background
3. Mr Giddy was born on 3 August 1958. He completed his leaving certificate in 1975 and commenced a carpentry apprenticeship in 1976 for a twelve month period. After two years of employment as a labourer he joined the Army in 1978, where after recruit training he served with the 2nd Field Engineer Regiment at Enoggra. During his period in the Army he suffered a fractured tibia and fibula in a motorcycle accident, which required a six months period of rehabilitation. Mr Giddy left the Army in 1981.
4. Mr Giddy recommenced his carpentry apprenticeship after leaving the service and completed this activity in 1985, after which he was self-employed as a carpenter and joiner. In 1983 Mr Giddy was married. From late 1993 he commenced working as a carpenter and joiner for the Commonwealth Department of Administrative Services (Asset Services). He was made permanent in 1994.
5. On 18 September 1995 Mr Giddy was moving steel tubing at work when he felt pain in his back. On 4 October 1995 he lodged a claim for compensation for “strain to lower back resulting in a pinched nerve causing stiffness and pain to lower back area and throughout left leg and foot”. Liability was accepted by Comcare in relation to “lower back strain resulting in L5/S1 disc prolapse and L4/5 disc protrusion necessitating spinal fusion”. A two level spinal fusion was undertaken on 24 April 1996.
6. On 17 July 2002 Mr Giddy claimed reimbursement for the cost of particular medication, namely Coversyl Plus, Norvasc, Avapro and Lipitor. On 9 September 2002 Comcare declined to accept such a claim, stating that the nominated medications could not be related to the direct therapeutic treatment of the accepted compensable injury. On 3 October 2002 Dr Devlin, the attending general practitioner, forwarded a report stating that while Mr Giddy had borderline hypertension prior to injury, after the injury he had gained a lot weight due to his inability to remain as physically active. Further, such weight gain, poor exercise levels (due to pain) and chronic pain have, in his opinion, contributed to the worsening of his hypertension to the point where he has required ongoing anti-hypertensive medication (Coversyl Plus, Norvasc and Avapro) together with Lipitor medication for the management of his hyperlipidemia, which has been contributed to by his weight gain.
7. On 15 October 2002 Comcare issued a determination denying that the worsening of Mr Giddy’s pre-existing hypertension was a consequence of his compensable injury sustained on 18 September 1995, because the weight gain can be more reasonably related to dietary habits, this being a matter of lifestyle choices. This decision was affirmed by a Comcare Review Officer in a reconsideration decision dated 21 February 2003.
issues
8. The relevant issues before the Tribunal are:
a.whether Mr Giddy suffered a worsening of his pre-existing hypertension; and if so
b.was such worsening a consequence of circumstances arising out of or from his compensable back injury? And if so
c.is such worsening continuing? And if so
d.does such continued worsening constitute an injury pursuant to section 4 of the Act and attract compensation pursuant to section 14 of the Act?
decision
9. For the reasons nominated later in this decision I conclude that
a)Mr Giddy’s pre-existing hypertension condition was made worse, as evidenced by an increase in both systolic and diastolic readings, with such increases requiring anti-hypertensive medication; and
b)that his hypertension condition and raised serum lipid levels continue to require significant anti-hypertensive and anti-lipid medication therapy to both control the worsening that occurred and to prevent further worsening;
c)that weight gain, use of non-steroidal anti-inflammatory medication, chronic pain, a decrease in the ability to undertake exercise and physical activities and diet were factors which contributed to the worsening of the pre-existing hypertension condition;
d)that weight gain was a consequence of a decrease in exercise and physical activity as well as a food intake regime that was in excess of dietary needs;
e)that the use of non steroidal anti-inflammatory medication, a decrease in the ability to undertake physical activity, weight gain (contributed to by a decrease in physical activity) and chronic pain are all circumstances and factors that have arisen as a consequence of Mr Giddy’s compensable back injury;
f)that Mr Giddy has suffered an injury pursuant to section 4 of the Act, in that his pre-existing condition of hypertension was an ailment and this ailment was aggravated (made worse and/or accelerated), with his accepted work related injury contributing in a material degree to the aggravation; and
g)that Mr Giddy is entitled to the payment of compensation pursuant to section 14 of the Act for his injury, namely hypertension.
mr giddy’s evidence
10. Mr Giddy detailed the following in evidence:
a. That he suffered a significant injury to his back at work on 18 September 1995, with pain radiating down both legs.
b. That prior to his injury he was quite fit and was active in water sports, namely canoeing and boating every second week (fishing); that he was a keen walker and was involved in vermin control on properties and was actively involved in a rifle club.
c. That his weight at the time of Army enlistment was 94 kilograms and prior to the accident was around 105 to 107 kilograms, he being 73 inches tall; that by early 1996 his weight was 115 kilograms, this being prior to the spinal fusion undertaken by Dr Maloney in April 1996; that his weight increased to 118 kilograms after a two week period of immobilisation in the Rehabilitation Centre at Thirroul; that by late 1996 early 1997 when he was attending Dr Ferguson, his weight was 120 kilograms; that his weight at the time of the hearing was 115 kilograms;
d. that he sought continuing medical attention from Dr Ferguson after the accident for a period of 18 to 24 months, his previous general practitioner being Dr Devlin, to whom he returned after the period under Dr Ferguson’s care;
e. that following his accident in September 1995, he stopped work two weeks after the injury and was unable to undertake any of the physical activities which he previously had undertaken. He also found it difficult doing the normal things associated with daily living;
f. that he had a reaction to some of the pain medication that he received, with this and the levels of pain medication (capenal, morphine derivatives) given causing him to be inactive and lethargic and with little consequent mobilisation;
g. that in late 1996/early 1997 he was prescribed anti-hypertensive medication (Norvasc, Coversyl and Avapro) and Lipitor (anti lipid) by Dr Ferguson. Further, he has continued with this medication thereafter;
h. that following the injury in September 1995 he experienced periods of severe depression, which commenced some six months after the injury and went on for a period of 18 months – thereafter he has been up and down and at this time he is “keeping on”, while attempts are made to wean him from his morphia medication. During the period nominated he reported the following symptomatology:
· did not feel capable
· felt useless
· difficulty in sleeping
· experienced low feelings
· did not want to do anything, nor get on and do things;
i. that medication at the time of hearing and for the last five to six years included pain medication (Capenol 70-80 mgs BD, Epilom 1000mgs BD, Paracetamol, Ordine (2 mgs 4 hourly PRN), Mogodon and Celebrex (one capsule a day), anti hypertensive medication (Coversyl, Norvasc, Avapro) and Lipitor to lower serum lipids;
j. that he had not been totally inactive since his injury and that he undertakes
· hydrotherapy programs twice weekly
· remedial massage weekly
· walks as much and as often as he is able
· physiotherapy on and off (not at the moment)
· home exercise activities (stretches, flexes, knee bends and isometric exercises);
k. that his other physical activities are not a patch on his pre-injury schedules, with involvement in shooting almost non existent, boating only twice a year and no canoeing, fishing (seldom and not last year and not off shore). He is able to walk up to three kilometres on some days;
l. that over the last 12 to 18 months Dr Devlin has spoken to him about his diet and he has eliminated a lot of fat, sugar and soft drinks from his diet. He consumes little alcohol, does most of the cooking and has lost about seven kilograms of weight over that period (122 down to 115);
m. has no specific recollection of Dr Devlin talking to him about his blood pressure prior to the accident in 1995, but was aware that it was borderline at that time. He ceased smoking about 20 years ago and is not aware of any family history of hypertension.
medical evidence
Clinical Notes of Dr Devlin:
11. The clinical notes of Dr Devlin (Exhibit R4) detail a series of blood pressure recordings commencing with a reading of 130/85 on 12 June 1989. Subsequent readings are detailed as 140/85 on 28 March 1990 and February 1991, 130/88 on 8 March 1991, 145/90 on 11 June 1993, 140/88 on 3 December 1993, 140/95 on 14 February 1995, 150/95 on 15 March 1995, 140/90 on 16 March 1995 and 150/85 on 11 September 1995.
12. Subsequent blood pressure readings detailed by Dr Devlin commenced in 1998, by which time Mr Giddy was receiving anti-hypertensive medication. Even so on 28 September 1998 the blood pressure is recorded at 155/105 with various recordings throughout 1998, 1999 and 2000 indicating a systolic greater than 140 or a diastolic greater than 90. Throughout 2001, 2002 and early 2003 some 39 recordings are detailed of which 31 can be described as being normotensive (equal to or less then 140 systolic and 90 diastolic).
dr o’rourke – consultant cariologist
13. In a report dated 16 June 2003, Professor O’Rourke detailed the Applicant’s clinical history and concluded after examination that:
·Mr Giddy was obese prior to his injury in September 1995 (BMI 31.2) and remains obese (BMI 35.4)
·that Mr Giddy was suffering from hypertension prior to his injury in September 1995
·that Mr Giddy’s hypertension may have been made worse by his increase in weight following his injury
·that Mr Giddy would have required treatment for his hypertension irrespective of whether the injury had occurred or not
·that Mr Giddy’s weight gain accentuated the rise in blood pressure
·that Mr Giddy’s weight gain was due not only to lack of exercise, but also to food intake.
14. In a further report dated 18 June 2003 (Exhibit R2) he detailed the history of blood pressure readings which confirmed a diagnosis of pre-injury hypertension. He also noted a weight reading by Dr Devlin of 116.5 kilograms in July 2001 and that Mr Giddy had described problems with medication (gastric, constipation).
15. In a third report dated 9 June 2004 (Exhibit R3), Professor O’Rourke concluded that:
·Mr Giddy’s present anti-hypertensive medication regime is reasonable
·that Mr Giddy would have required anti-hypertensive medication if his blood pressure had remained at 140/90
·that Mr Giddy’s hypertension is well controlled with current medication
·that drugs such as Celebrex can elevate arterial pressure, but Mr Giddy’s hypertension remains well controlled
·that Mr Giddy’s aggravation of hypertension ceased with the initiation of appropriate therapy in 1998
·that Mr Giddy needs anti-hypertensive therapy now and needed it in 1995. He saw no evidence that the injury aggravated hypertension or led to therapy that Mr Giddy did not require for his constitutional problem
·that the ongoing need for anti-hypertensive therapy is a consequence of an underlying constitutional problem and not a consequence of the injury in 1995.
dr yiannikas – consultant caridioligst
16. In a medical report dated 22 November 2003 (Exhibit A2) Dr Yiannikas detailed a clinical history in which Mr Giddy told him that:
·12 months after his back injury in September 1995 he sustained hypertension sufficient to require anti-hypertensive therapy, while prior to the injury he had elevations in his blood pressure, but had not received regular treatment for such. As time went by he stated that he required increasing amounts of anti-hypertensive therapy, with his blood pressure in most recent times being well controlled on current medication
·that since his injury his weight had increased by 18 kilograms, which he attributed to his sedentary state.
17. Dr Yiannikas noted that Mr Giddy was obese, weighing 120 kilograms; that from Dr Devlin’s recordings of blood pressure over time Mr Giddy had mild hypertension prior to his injury in September 1995; that his hypertension had significantly deteriorated requiring multiple medication for control; that weight gain had contributed to his worsening hypertension; that chronic and severe pain may at times elevate blood pressure and that anti-inflammatory agents can sometimes aggravate hypertension.
concurrent evidence
18. In concurrent evidence both Professor O’Rourke and Dr Yiannikas agreed that Mr Giddy had mild hypertension prior to his injury in September 1995 and that such hypertension was of a constitutional origin. Further, both clinicians agreed that weight gain, lack of exercise, diet, severe chronic pain and anti-inflammatory medications were risk factors in hypertension. Further, both clinicians agreed that such risk factors had made a contribution to the worsening of Mr Giddy’s hypertension after his injury in September 1995.
19. Professor O’Rourke maintained his earlier opinion that the effect of any aggravation had ceased once therapy for hypertension was commenced in September 1997. In so stating Professor O’Rourke stressed that Mr Giddy should have been treated for his hypertension prior to his injury, and that treatment instituted post-injury and which controlled the hypertension would have been of like nature and magnitude, if not the same.
20. In arriving at his opinion Professor O’Rourke, in noting that weight gain was a consequence of both, quantum of food intake and the amount of exercise undertaken, observed that Mr Giddy had informed him that he was receiving only two anti-hypertension medications, namely Avapro and Coverysl Plus. He was unaware of a third anti-hypertensive prescribed, namely Norvasc.
21. Professor O’Rourke, when taken to Lifestyle Modification Recommendations detailed in the Seventh Report on the Joint National Committee on prevention, Detection, Evaluation, and Treatment of High Blood Pressure being a report attached to his third report (Exhibit R3) concurred with findings nominated, namely:
·a weight reduction of 10 kilograms would result in an average reduction of 5 to 20 mm Hg in the systolic reading
·aerobic physical activity (defined) would result in an average reduction of 4-9 mm of Hg in the systolic reading.
22. Dr Yiannikas in his opinion stressed that the accident in September 1995 had resulted in a worsening of Mr Giddy’s pre-existing hypertension when he became overweight, was unable to exercise, experienced chronic severe pain and was treated with anti-inflammatories; that such worsening required treatment and that the treatment given for the hypertension was both significant (difficulty in initially controlling the hypertension) and continuing.
considerations and findings
23. The factual circumstances in this matter are essentially not in dispute between the parties and accordingly I detail the following findings of fact:
·Mr Giddy suffered from borderline hypertension prior to his low back injury in September 1995. This hypertension was of constitutional origin and had not been treated.
·Following surgery for his work related injury in early 1996, Mr Giddy’s rehabilitation was impeded by continuing severe chronic low back pain which has limited his ability to undertake the range of both work and non work physical activities that he was undertaking prior to his injury.
·That following his injury Mr Giddy experienced an increase in weight from around 105 to 107 kilograms to a level of 120 to 122 kilograms, which has been lowered to a current level of 115 kilograms.
·That such a weight gain arose as a consequence of an inability to physically exercise to a level undertaken prior to injury, together with a dietary intake inappropriate for the amount of exercise undertaken.
·That there was an increase in Mr Giddy’s hypertension, which necessitated the need for significant anti-hypertensive therapy (Coversyl Plus, Avapro and Norvasc), which was commenced in 1997, some twelve months plus after his surgery.
·That Mr Giddy continues to be treated with the same anti-hypertensive medication, and Lipitor to lower his elevated severe lipid level, the latter being a known risk factor in cardio vascular disease.
24. Section 4 of the Act defines injury as encompassing a disease suffered by an employee, with disease being defined to encompass the aggravation of any such ailment, being an ailment or aggravation that was contributed to in a material degree by the employee’s employment. Section 4 also defines aggravation to include acceleration or recurrence with ailment being any physical or mental ailment, disorder, defect or morbid condition.
25. In considering the factual circumstances in this matter, I conclude that both hypertension and high levels of severe lipids are morbid conditions and hence ailments, in terms of the definition of ailment referred to. I further note from the medical evidence presented in this matter that both are risk factors in cardio vascular disease, with the latter being an associated consequence if raised levels of blood pressure and serum lipids persist.
26. I note the opinions of both Professor O’Rourke and Dr Yiannikas and their agreement that Mr Giddy’s pre-existing hypertension was made worse as a consequence of his weight gain, his continuance of chronic severe pain and treatment with anti-inflammatories following surgery for his low back injury in 1996. I agree with their opinions and conclude that such circumstances constitute an aggravation of the pre-existing hypertension.
27. I note that Professor O’Rourke argues that in essence the aggravation is temporary, with Mr Giddy’s current therapy for hypertension controlling his hypertension, and in his opinion, being therapy which should have been instituted in 1995 prior to his injury. In essence, current therapy is providing control of the hypertension and to the same control as if the same or like medication had been commenced in 1995, when indeed in Professor O’Rourke’s opinion therapy should have been instituted.
28. I have some difficulty with this opinion in that while it is an expert opinion, the opinion maker seems to place significant emphasis on current medication control of the hypertension as the determinant on whether the aggravation has ceased. This, it would seem, ignores consideration of the factors (weight gain, lack of exercise, chronic severe pain and medication with anti-inflammatories), which he argues caused the temporary aggravation. That they continue to exist and indeed contribute to the level of hypertension, and presumably to the level of medication required seems to be ignored in such an analysis, if indeed the lifestyle modifications recommendations in the expert report accompanying Professor O’Rourke’s third report are to have a meaningful interpretation. It would appear to follow from Professor O’Rourke’s opinion that treatment with the same medication prior to injury would have led to a sufficient level of control of the hypertension despite the hypertensive effects of the superimposed risk factor following injury. Such an analysis involves elements of speculation, particularly when again the same expert report details a two drug regime for initial treatment of stage one hypertension (this being the level of Mr Giddy’s pre-injury hypertension as defined in the same expert report).
29. In addressing the evidence of Dr Yiannikas, I find that his opinion is the opinion I prefer. In so stating I acknowledge the following:
·that the risk factors (weight gain, lack of exercise, use of anti-inflammatories) made Mr Giddy’s pre-injury stage one hypertension worse
·that Mr Giddy’s worsening hypertension required treatment with three anti-hypertensive medications (not two as indicated in the expert report for a stage one hypertension)
·that the risk factors remained and continue to remain once adequate anti-hypertensive therapy had been instituted
·that the risk factor of weight increase was a direct consequence of decreased physical activity (compared with pre-injury levels) and a dietary consumption greater than what was needed for energy expended. Both factors make a contribution to the weight gain
·that weight gain and inappropriate diet contribute to higher levels of serum lipids. Alteration to both diet and exercise are obviously important in the case of chronic severe pain suffers, particularly in circumstances such as in this matter where periods of depressed mood are in evidence.
30. In summary I conclude that Mr Giddy’s pre-injury pre-existing hypertension was aggravated as a consequence of his injury. Further, the risk factors which led to the aggravation of his hypertension and to his high serum lipid continue to exist and require lifestyle modifications and continuing therapeutic medication to prevent further deterioration of the existing and associated morbid conditions. I reject Professor O’Rourke’s concept that the aggravation was only temporary. Such a concept implies that the factors which contributed to the worsening of the hypertension, namely increase in weight, lack of exercise, chronic severe pain and the use of non-steroidal anti-inflammatories, cease to exert an influence on the level of hypertension once effective anti-hypertensive medication is introduced which controls the hypertension to a normotensive level. Clearly this is not so as evidenced by the expected reductions in systolic readings as a response to lifestyle modification (expert report attached to Professor O’Rourke’s third report).
31. Indeed I conclude that the need for such an anti-hypertensive regime is consistent with the opinion of Dr Yiannikas that the pre-existing hypertension was made permanently worse, that the level of treatment instituted was significant and was more than what is recommended for the treatment of stage one hypertension (expert report attached to Professor O’Rourke’s third report) and reflects a medication regime necessary to control the hypertension made worse by factors which continue to exert their influence on the level of hypertension, albeit their influence being masked in part by such a therapy regime.
32. In conclusion, it is the sequence of events and the introduction of factors known to increase the blood pressure during that sequence coupled with the continuance existence of these factors and the level of medication which are instructive in my concluding that the aggravation was permanent. I continue to experience significant difficulty with Professor O’Rourke’s opinion that the aggravation ceased with the initiation of the anti-hypertensive therapy, despite the fact that aggravating factors remained and that the level of treatment instituted and maintained was consistent with therapy that should have been commenced in 1995. I again note that Professor O’Rourke’s opinion was formulated on an anti-hypertensive medication regime involving two drugs only, as opposed to circumstances in this matter, where it is evident that three anti-hypertensive drugs were needed to maintain effective control of the hypertension.
determination
33. The decision under review is set aside and in substitution thereof, the Tribunal finds that
a)the Applicant has suffered an aggravation of his pre-existing hypertension as a consequence of his work related injury; and
b)the Applicant is entitled to payment of compensation for hypertension pursuant to section 14 of the Act; and
c)the Applicant is entitled to costs in this matter, pursuant to the Tribunals Practice Direction.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 4 November 2004, 17 February 2205, 5 May 2005
Date of Decision 31 May 2005
Counsel for the Applicant Mr D Shoebridge
Solicitor for the Applicant Mr I Simic
Counsel for the Respondent Ms S Moffatt
Solicitor for the Respondent Ms M Mittiga
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