Glendenning and Military Rehabilitation and Compensation Commission
[2006] AATA 1050
•5 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1050
ADMINISTRATIVE APPEALS TRIBUNAL № V2006/382
GENERAL ADMINISTRATIVE DIVISION
Re: PAUL ASHLEY GLENDENNING
Applicant
And:military REHABILITATION and compensation commission
Respondent
DECISION
Tribunal: Dr K. Breen, Member
Date:5 December 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Dr K. Breen
Member
MILITARY REHABILITATION AND COMPENSATION COMMISSION – irritable bowel syndrome – gastro-oesophageal reflux disease – whether objective signs – signs and symptoms – aggravation or exacerbation – links to employment – permanent impairment - degree of impairment - decision affirmed
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Glendenning and Comcare [2004] AATA 6
Re Florit and Comcare (2004) 81 ALD 774
REASONS FOR DECISION
5 December 2006 Dr K. Breen, Member
Background
1. Paul Glendenning (the applicant) was born on 2 May 1962. He enlisted in the Australian army on 18 January 1979. On 19 August 1998 he lodged a claim for rehabilitation and compensation in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of a number of conditions. This claim was eventually determined by the Administrative Appeals Tribunal (the Tribunal) on 9 January 2004. It determined that, under s 14(1) of the Act, Comcare (the respondent) was liable to pay compensation to the applicant in respect of gastro-oesophageal reflux disease and irritable bowel syndrome.
2. On or about the 25 February 2004 the applicant requested that he be assessed for permanent impairment, as a result of those two conditions, for lump sum compensation. In a letter dated 12 April 2005, the Military Compensation and Rehabilitation Service (MCRS) determined that no payment could be made for permanent impairment. The applicant requested a reconsideration of this determination. On 20 July 2005 a delegate of the MCRS affirmed the original determination. On 19 August 2005 the applicant sought review of that decision by the Tribunal.
Hearing
3. At the hearing the applicant was represented by Mr D. Richards of Counsel. The respondent was represented by Mr C. Clark of Counsel.
Exhibits
4. The Tribunal received into evidence the documents lodged by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975, as well as two exhibits (Exhibits A1 and A2) lodged by the applicant and five exhibits (Exhibits R1-R5) lodged by the respondent.
Issues and Legislation
The bases for the Diagnoses
5. The medical conditions under consideration at this hearing are those for which the respondent has already accepted liability, namely gastro-oesophageal reflux disease and irritable bowel syndrome. Thus the diagnoses are not at issue. However, it is relevant for the Tribunal to revisit the grounds on which the diagnoses were established, as well as the time that symptoms were first recorded. This is because the Tribunal will need to decide when each diagnosis was first made, when each condition became permanent and when evidence appeared to support the contention that either condition was associated with permanent impairment.
6. From a careful review of Mr Glendenning's medical records, the following details emerge. In August 1977 he completed an entry medical history questionnaire and no gastrointestinal symptoms were recorded. A very poor quality photocopy of a medical attendance on 30 March in the 1970s (the exact year is not clear), recorded abdominal bloating and diarrhoea for which Mr Glendenning was treated with Lomotil, an antidiarrhoeal. On 23 March 1979 he had an overnight admission with a history of epigastric pain, diarrhoea and nausea. Between July and November 1979 his complaint of epigastric pain was investigated. In November 1979 Dr Wettenhall concluded that his pain was due to functional spasm.
7. In October 1980 he attended complaining of pain and diarrhoea and was treated with Lomotil again. There is a record that in August 1982 Mr Glendenning suffered frequent indigestion and heartburn. In February 1992 he had symptoms consistent with mild gastro-oesophageal reflux. There is a note that in September 1994 he had a one-week history of pain and a diagnosis of gastric reflux. In May 1995 he presented with epigastric pain and oesophageal reflux and a Dr Fitzgerald noted that Mr Glendenning gives 16 year history of epigastric pain. An entry dated two weeks later notes a 15-year history of pain and a possible diagnosis of gastro-oesophageal reflux. There is a record of a normal gastroscopy on 31 May 1995, and a subsequent concluded diagnosis of gastro-oesophageal reflux. Mr Glendenning was responding well to Zantac. There is an entry in August 1995 noting long-standing gastro-oesophageal reflux.
8. There is mention of lower abdominal pain in February 1996. In July 1996 the medical notes recorded reflux on Zoton. There is a description of a ten-year history of bouts of watery diarrhoea every two weeks, increasing over the last three years, with abdominal bloating. This is the point at which the irritable bowel syndrome is first mentioned and there is a referral to a specialist gastroenterologist.
9. In May 1997 the medical notes show that Mr Glendenning was suffering loose bowel motions and full of gas. In October that year he had a gastroscopy and colonoscopy which were reported as normal and in September that year he was described as fully deployable. There is a report that in April 1998 he was doing well, his reflux was decreased, he was on Amfamox only and had no diarrhoea. There is mention that in July 1998 there was a recurrence of the symptoms of irritable bowel syndrome and the medical officer noted a 19-year history of the same symptoms. One week later, his treatment was changed from Buscopan to Colofac and there is a record that two weeks later both conditions were stable and he had minimal symptoms.
10. In late 2000 Mr Glendenning was referred to Dr Collins, gastroenterologist, and the referral note mentions a long history of both reflux oesophagitis and irritable bowel syndrome. He was seen by Dr Collins on the 22 January 2001. In her letter to the referring doctor, dated the 14 February 2001, Dr Collins diagnosed reflux dyspepsia and irritable bowel syndrome present for many years. Her letter identifies stress as a possible factor in making the irritable bowel syndrome worse but she does not record any mention of stress faced by Mr Glendenning. She states Paul seems to have managed his symptoms mainly with lifestyle manoeuvres. She stated that his condition should not impair his day-to-day functioning.
11. There is a medical record that in October 2001, Mr Glendenning’s reflux did not need medication and that his irritable bowel syndrome had shown an excellent response to a mebeverine (Colofac). The record shows that on 24 November 2003 he was in a different army unit with much decreased stress levels, and that he was much happier.
12. It is relevant to interpose here that Mr Glendenning's claim for rehabilitation for irritable bowel syndrome and epigastric pain was made on 19 August 1998.
13. As several of the medical witnesses identified, relevant parts of Mr Glendenning’s medical records as summarised above do contain mention of symptoms or medical problems which may have been precursors to, or the beginnings of, both of his medical conditions. However, the first mention of the diagnosis of mild gastro-oesophageal reflux is in 1992, followed by a firm diagnosis in 1995. The diagnosis of the irritable bowel syndrome appears first in 1996 and formal specialist confirmation of both the irritable bowel syndrome and gastro-oesophageal reflux is made in Dr Collins’ report dated 14 February 2001.
Aggravation or Exacerbation – Links to Employment
14. As was the case before the previous Tribunal hearing, Mr Glendenning did not argue that either of these two conditions was caused by his employment. The evidence before this Tribunal supports this conclusion as Drs Collins, Eaves, Hession and Macrae all gave evidence that neither condition was caused by Mr Glendenning’s employment. They were in agreement that the stress of his work could aggravate or exacerbate the irritable bowel syndrome. The only other medical witness, Dr Broadbent, was of the opinion that Mr Glendenning’s pre-entry disposition made him more prone to gastrointestinal symptoms because of his low tolerance of psychological stress. In regard to his gastro-oesophageal reflux, Dr Eaves emphasised that physical factors in his work environment were likely to aggravate his reflux. Dr Eaves and Dr Macrae did not support the notion that stress was a factor in his reflux symptoms, while Dr Collins stated that stress and anxiety were common exacerbating factors for reflux symptoms.
Temporary or Permanent
15. In the decision of 2004, Glendenning and Comcare [2004] AATA 6, the Tribunal determined that the conditions were temporary. The Tribunal stated, at paragraph 25:
On the basis of the medical evidence, I am satisfied that the impairment from which the applicant suffers in respect of GOR (gastro-oesophageal reflux) and IBS (irritable bowel syndrome) is temporary in nature in that the symptoms come and go depending upon whether the applicant is exposed to employment-related stressors or postural changes that affect regurgitation. The conditions manifest themselves from time to time and, in that sense, can be described as periodic but temporary presentations. However, whilst the applicant continues as an employee of the Commonwealth, those temporary aggravations will continue to present themselves and, in that sense, because the applicant remains in employment with the Army, the respondent remains liable. There is no evidence that he is incapacitated for work but, nevertheless, as the impairment in (sic) ongoing while his employment continues, I am satisfied that the respondent is liable to pay compensation in accordance with the 1988 Act in respect of the GOR and IBS for impairment in accordance with the terms of sub-section 14 (1) of the 1988 Act.
16. Before examining the evidence available to the Tribunal in the matter of permanence and permanent impairment, it is necessary to look at the relevant definitions provided in the Act. Under s 4, permanent is defined as likely to continue indefinitely; and impairment means the loss, the loss of use, or damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function. Section 24 of the Act concerns Compensation for injuries resulting in permanent impairment and it states:
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
…
17. Section 24(5) of the Act provides that the Guide to the Assessment of the Degree of Permanent Impairment (the approved Guide) is to be applied to determine the degree of permanent impairment resulting from an injury. This is to be cross-referenced with Table 8.1 (the relevant table), which states that anatomical loss or alteration needs to be considered along with objective signs of disease.
18. The evidence before this Tribunal from five different specialists inevitably leads to the conclusion that these conditions are permanent, although with a great tendency to wax and wane in relation to stress, physical activity and medical treatment.
19. In her report dated 14 February 2001 Dr Collins noted that gastro-oesophageal reflux tends to recur without medication. With regard to irritable bowel syndrome, she stated the condition is chronic and there is no cure. In her report dated 24 June 2003, she stated that the applicant has episodic dysfunction of his gastrointestinal system and the underlying conditions causing this …. are chronic benign conditions with no cure and hence can be considered permanent.
20. In his initial report dated 23 April 2001, Dr Eaves clearly stated that both conditions are permanent and added they became permanent the day they appeared. He emphasised this again in a letter dated 24 October 2005, where he stated that the accepted conditions are permanent in the sense that they will continue indefinitely whether or not the applicant continues his military service.
21. In an attachment to his report dated 30 March 2005, Dr Hession answered yes to the question is the impairment permanent (likely to continue indefinitely)? On 16 December 2002 Dr Broadbent took a different view of Mr Glendenning’s condition; in that he concluded there was no permanent impairment arising from a compensable injury. He therefore did not directly address the question of whether the two conditions were permanent in themselves. He did address this issue indirectly when he wrote the prognosis is that there will be no change in Mr Glendenning's overall condition.
22. In his report dated 7 March 2006, Dr Macrae addressed the issue of the permanence of the conditions versus any permanent impairment separately. In regard to the former, he wrote symptomatology is likely to continue as is common with both of these conditions, and it is indeed unlikely the effects of these conditions will cease, due to their chronicity.
23. Based on the foregoing evidence, I have no difficulty concluding that the gastro-oesophageal reflux and irritable bowel syndrome are permanent conditions.
When did the conditions become permanent?
24. There is dispute between the parties as to the date at which both conditions became permanent. However, I do not think that this is an important or relevant issue. Rather, the key issue must be, providing impairment has been established, when was the onset of permanent impairment. The evidence from the medical witnesses needs careful consideration as, with the exception of Dr Macrae, none of the witnesses were at first clearly separating the onset of a permanent medical condition from the onset of permanent impairment. Those witnesses who have appropriately focussed on the legal concept of impairment (and not fitness for employment) have in general agreed that the onset of permanent impairment occurred after 1988. Their evidence clearly supports the presence of impairment as defined as malfunction of any bodily system.
25. None of the medical witnesses were asked to turn their minds directly to the nature of the impairment generated by Mr Glendenning's two conditions. However, I am satisfied that their consistent descriptions of his two conditions are sufficient evidence of malfunction of his bodily systems, the oesophagus and the large bowel.
26. For the purposes of determining whether an impairment is permanent, under s 24(2) of the Act, the decision-maker shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant factors.
27. Dr Collins stated in 2003 that the degree of incapacity from his gastrointestinal conditions has waxed and waned significantly and is likely to continue to do so. Dr Eaves addressed the question of permanent impairment in May 2003 noting in both Dr Collin’s consultation and his consultation Mr Glendenning complained of significant symptoms of gastro-oesophageal reflux and irritable bowel syndrome despite significant medication to combat these conditions. In his report dated 7 March 2006 Dr Macrae states that Mr Glendenning certainly continues with impairment relating to both disorders, with periodic dyspeptic and functional bowel disorder symptoms as described. All three specialist gastroenterologists were satisfied that both medical conditions had been adequately treated. Dr Macrae mentioned surgical fundoplication; but only in the context of Mr Glendenning being able to do away with his medications. In her report dated 24 June 2003, Dr Collins, at the end of a long list of treatment recommendations, mentioned that psychological therapy may be considered.
28. Based on the foregoing evidence, I am satisfied that Mr Glendenning's impairment has been and will be of long duration, that the two conditions, gastro-oesophageal reflux and irritable bowel syndrome, are unlikely to improve. I am also satisfied that the conditions will wax and wane and that all reasonable treatment has been undertaken. No other relevant factors were raised in evidence before the Tribunal.
29. I therefore conclude that Mr Glendenning’s conditions are permanent and that the impairment caused by both conditions is also permanent. The evidence supports the onset of permanent impairment as being post-1988. Mr Glendenning gave evidence that his relocation to Sydney in 1994 into a difficult employment situation aggravated his conditions. I accept this evidence, noting that his description of the nature of his work and its associated responsibilities and long hours that he carried at that time was not challenged. His medical records, which indicate little need for medical assistance with either condition prior to this time, also support the conclusion that the exacerbations leading to permanent impairment took place after 1988. I am therefore satisfied that the Act does apply to Mr Glendenning's situation.
The degree of permanent impairment
30. The degree of permanent impairment involves consideration of the legal meaning of the words symptoms, signs, objective signs and anatomical loss or alteration under Part 2 of the approved Guide. Counsel for the applicant appeared to place great weight on the impairment ratings provided by Dr Collins and Dr Eaves. However, I am not convinced that either doctor has used the approved Guide appropriately, specifically in relation to the meaning of the words symptoms and signs. Dr Macrae in his report was very alert to this conundrum as he wrote on 7 March 2006 that strictly, with an interpretation of objective signs in Mr Glendenning his impairment would be zero. In his follow-up letter dated 9 May 2006, he wrote:
Assuming symptoms of irritable bowel syndrome and gastro-oesophageal reflux are recognised as ‘objective signs’, percentage whole person impairment would be:
·for irritable bowel syndrome: 15%
·for gastro-oesophageal reflux: 15%
31. In his report dated 23 April 2001, Dr Eaves wrote whole person impairment - 25%: objective signs of disease and dietary restrictions and drugs produce partial but incomplete control. Counsel for the respondent questioned Dr Eaves about the presence of objective signs to which he responded that there were none for these conditions.
32. In her report dated 24 June 2003 Dr Collins applied Table 13 of the approved Guide for intermittent conditions. The possible use of this table seems to me to be inconsistent with the design of the approved Guide which contains three specific tables for the digestive system. The relevant table, Table 8.1, is devoted to Disorders of the oesophagus, duodenum, stomach, small intestine, pancreas, colon, rectum and anus. As I have not found that Mr Glendenning’s conditions are intermittent, Table 13 is not relevant.
33. Two of the medical witnesses tried to suggest that in the case of the irritable bowel syndrome (where, by definition, objective physical signs or anatomical alteration must be absent), typical symptoms can become the objective signs. I am not inclined to accept this evidence. Since the approved Guide uses both words - symptoms and signs - in the one sentence, the authors surely intended that the two words have distinct meanings. In addition, as the approved Guide is based on the similar guide of the American Medical Association, it must be assumed that the words symptoms and signs have their medical meaning. According to the Blackiston’s Gould Medical Dictionary (4th ed), a sign is defined as an:
objective evidence or physical manifestation of disease.
A symptom is defined as a:
phenomenon of physical or mental disorder or disturbance which leads to complaints on part of the patient; usually a subjective state, such as headache or pain, in contrast to an objective sign.
34. This distinction is consistent with Senior Member Sasella’s application of the terminology in Re Florit and Comcare (2004) 81 ALD 774 at paragraph 33:
The need for “objective signs” means, in our view, the need for objective signs of a stomach disorder to be present on an ongoing basis such as, for example, by way of endoscopy. In a medical context the adjective “objective” is used to refer to a sign or symptom that can be perceived by others in addition to the patient. A symptom only the patient can perceive is “subjective”.
It therefore follows, with regard to Mr Glendenning's irritable bowel syndrome, that it is not possible for him to demonstrate any signs or objective signs. Nor is it possible for him to demonstrate any damage to the bowel as such a demonstration would tend to undermine or negate the original diagnosis.
35. As identified in some of the medical reports, it is possible to demonstrate damage to the oesophagus in gastro-oesophageal reflux disease. Thus, in Dr Macrae's report dated 7 March 2006, he writes:
Mr Glendenning certainly has symptomatic gastro-oesophageal reflux disease, although this has not been documented to be associated with inflammation or ulcerative disease in the oesophagus, as evident by several gastroscopies.
36. In the second gastroscopy performed by Dr Collins, and reported in her letter dated 3 April 2001, she described a few millimetres of linear inflammation in the lower oesophagus. When this finding was drawn to the attention of Dr Macrae by Counsel for Mr Glendenning, Dr Macrae gave evidence that inflammation is a soft sign, there is no break in the lining and finally I think it is an interpretation which is not necessarily robust.
37. Dr Schoeman performed a further gastroscopy on Mr Glendenning on 11 September 2003 and noted no oesophageal abnormalities.
38. Therefore, taking into account the weight of the medical evidence, I find that there are no objective signs of gastro-oesophageal reflux.
The application of the approved Guide
39. In applying the relevant table of the approved Guide first to Mr Glendenning’s irritable bowel syndrome, as there are symptoms present but no anatomical loss or alteration, the percentage whole person impairment must be nil. In applying the relevant table to his gastro-oesophageal reflux disease, he again has symptoms present but no anatomical loss or alteration. Accordingly, the percentage whole person impairment must be nil. Under s 24(7)(b) of the Act, I have determined that the degree of permanent impairment is less than ten per cent and accordingly an amount of compensation is not payable to Mr Glendenning under this section.
Conclusion
40. The Tribunal affirms the decision of the MCRS dated 20 July 2005.
I certify that the forty [40] preceding paragraphs are a true copy of the reasons for the decision herein of
Dr K. Breen, Member
Signed: .Ursula Noyé
ClerkDates of Hearing 23 and 24 October 2006
Date of Decision 5 December 2006
Counsel for the Applicant Mr D. Richards
Solicitor for the Applicant D’Arcy’s Solicitors
Counsel for the Respondent Mr C. Clark
Solicitor for the Respondent Sparke Helmore
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