GRAHAM STRAWBRIDGE and MILITARY REHABILITATION & COMPENSATION COMMISSION
[2009] AATA 212
•26 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 212
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2007/0713
GENERAL ADMINISTRATIVE DIVISION ) Re GRAHAM STRAWBRIDGE Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal The Hon Robert Nicholson, Deputy President
Dr P Staer, Member
Date 26 March 2009
Place Perth
Decision1. The reviewable decision dated 5 January 2007 be varied so as to allow the applicant’s claim with respect to his upper limbs
2. Otherwise the reviewable decision is affirmed.
...(sgd) Hon Robert Nicholson.......
Deputy President
CATCHWORDS
COMPENSATION – accepted original neck injury during naval service in 1966 - later injuries – subsequent claims with respect to upper and lower limbs and respiratory system – whether original neck injury materially contributed to subsequent claims – whether original neck injury became asymptomatic or materially contributed to the conditions in the claim
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth), s 14
CASES
Comcare v Sahu-Kahn (2007) 156 FCR 536
26 March 2009 REASONS FOR DECISION
The Hon Robert Nicholson, Deputy President
Dr P Staer, Member
1. The applicant seeks review of a decision made on 5 January 2007 by an independent review officer save as to its acceptance of liability for erectile dysfunction. The decision otherwise found that the evidence did not support a finding that liability should be accepted under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) with respect to claims made in 2005 for compensation in relation to (1) the applicant’s upper limbs and (2) lower limbs and (3) loss of respiratory function. The applicant contends that the most recent available evidence supports a finding that he is entitled to compensation for his ‘chronic strain of the cervical spine with nerve root involvement and of the thoracic spine’ condition to which he claims these remaining three conditions are causally related.
2. It is common ground that on 4 February 1971 it was determined under the Commonwealth Employees’ Compensation Act 1930 (Cth) that the applicant sustained personal injury by accident arising out of or in the course of his employment by the Commonwealth on 5th September 1966 namely, chronic strain of the cervical spine with nerve root involvement and of the mid thoracic spine. This injury arose from an injury to the applicant’s neck.
The applicant’s claim for the three remaining conditions was lodged on 25 February 2007. We understand that to be the relevant date at which to determine the application of the law for the purposes of the review. At that time the SRC Act provided in s 14(1) that ‘subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.’ ‘Injury’ was relevantly defined by s 4(1) of the SRC Act to include ‘a disease suffered by an employee.’ ‘Disease’ was defined by the same section to mean any ailment suffered by an employee or the aggravation of any such ailment ‘being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.’ ‘Ailment’ was defined by the same section to mean ‘any physical or metal ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).’ It is not in dispute that the requirement for contribution to a material degree is to be understood as requiring a ‘substantial or considerable’ degree of work causation: Comcare v Sahu-Kahn (2007) 156 FCR 536 per Finn J.
It is not in dispute that, as consequence of the transitional provisions in the SRC Act, if the applicant is able to establish his entitlement under the SRC Act applicable at the time of his claim in 2005 to one or more of the three remaining conditions in issue, he would be entitled to compensation: see s 124 of the SRC Act. It is also not in dispute that if the applicant establishes the 1966 neck injury contributed to any of the three remaining conditions in a material degree, that condition would fall within the requirements for entitlement of s 4(1) of the SRC Act applicable at the date of the claim.
The issue on this application is whether, as the applicant contends, the continuum of symptoms since the date of the neck injury was contributed to in a material degree by that injury or, as the respondent contends, have no such connection because the injury became asymptomatic before those symptoms developed.
The applicant’s claim and factual background
3. The nature of the applicant’s claim is well set out in his final statement of facts, issues and contentions. In the respondent’s statement there is a large acceptance of the factual circumstances. The following sets out the applicant’s claim where appropriate and includes in italics some additional facts or descriptions stated by the respondent (and bearing the paragraph number in the respondent’s statement).
1.“The applicant was born on 21 September 1941.
2.The applicant enlisted in the Royal Australian Navy (RAN) aged 19 years old in 1961 (1961).
3.In 1965 the applicant …qualified as a Physical Training Instructor (PTI) with the RAN which qualified him to participate, teach, referee and organise judo, gymnastics, weight training, displays, fencing, competitive swimming, water polo, boxing, billiards and snooker, badminton, cricket, golf, tennis, table tennis, squash, basketball and badminton.
4.On 5 September 1966 the applicant was playing a game of Inter Navy hockey. During the match he dived to score a goal and the goalkeeper who weighed approximately 18-20 stone, collided with the applicant who weighed 10 stone. The goalkeeper’s hip collided with the left side of the applicant’s head and neck. The applicant lost awareness and consciousness and recalled waking up on the side of the field. He experienced a burning, searing sensation in his neck, both arms and both hands [‘the first neck injury’]. The applicant was taken to the medical sick bay by Navy bus… He was then transferred to Hollywood Hospital by ambulance (on advice from Dr Tiller).
5.The applicant remained an inpatient in Hollywood Hospital for 4 (3) weeks during which time his neck was immobilised. When discharged the applicant was experiencing continuing neurologic symptomatology, tingling, numbness down both arms and hands with bilateral activity related neck, shoulder, arm and chest pain. (Symptoms settled over this time except for tingling and numbness in the 4th and 5th digits of both hands with bilateral activity related arm pain).
6. The applicant was reviewed by Dr Tony fisher, Neurologist, on 22 September 1966. Dr Fisher wrote ‘I have noted the history and seen the x-rays. My examination shows no weakness or reflex asymmetrical or reflex asymmetrical (sic) in limbs. Sensory complaints are apparently related C5, 6 and T1 on right but the pattern does not follow normal anatomical distribution for a peripheral nerve or nerve root affection. I cannot, therefore, conceive that at my examination, there is an organic basis for his complaints.’
7 The applicant was reviewed by the Surgeon Lt RAN who wrote ‘I think the problem in this man is one which fairly commonly recurs from fairly forcible twisting injuries to the neck without any demonstrable bony pathology. I think the symptoms he presents are the result of a strain or minor injury of an inter-vertebral joint. I…believe he may well be appreciably benefited, if not cured, by manipulation of his neck under a GA, to be followed by a period of 10 days physiotherapy.’ [The Surgeon also wrote ‘there does appear to be some diminution of the Right biceps jerk and cutaneous sensation appears to be diminished to pin prick over the C5 & C6 dermatomes.’]
6.In March 1967 because of persistent neurological symptomatology the applicant was referred by the Department of Defence to Dr Frank Bell, Orthopaedic Surgeon and underwent a spinal manipulation under general anaesthesia followed by 10 days of physiotherapy.
7.Between April – June 1967 because of persistent neurological symptomatology, the applicant attended a Dr John Todd, Osteopath who provided osteopathic/chiropractic treatment and recommended traction at home. Although the applicant complied his neurological symptomatology persisted…(On 1 May 1967 the applicant commented that he ‘had no significant pain over the last two weeks following performing of his home traction for the previous month.’)
8.The applicant again because of persistent neurological symptomatology underwent another spinal manipulation under general anaesthesia in September 1969. (A record of the procedure notes ‘…Post operatively he still complained of constant pain in the right arm but felt that his back was far more comfortable.)
11. In December 1969 the applicant was reviewed by Dr Cohen, Orthopaedic Surgeon, who wrote ‘I find no reason for his symptoms and don’t believe they are as severe as he makes out.’)
9.The applicant’s persistent neurological symptomatology continued to interfere with the performance of his duties as a Physical Training Instructor in the RAN.
10.A Commonwealth Medical Officer [(‘CMO’)] provided a report dated 18 April 1970 noting that the applicant complained of “neck pain and pain between the scapula, mild intermittent loss of movement and pain on movement - occasional feeling of paraesthesia of the left 5th finger and left triceps muscle. ‘ The CMO thought it ‘possible’ the disability was caused by the injury of 5 September 1966 noting that an x-ray showed ‘mild changes in cervical vertebra C5 and C6. ‘ (The CMO said he thought the condition was temporary and could be ‘expected to cease within a few years.’)
11.On May 13 1970 the applicant completed a claim for compensation.
12.On 26 June 1970 the applicant was medically discharged from the RAN. A medical board observed the applicant suffered from C5, C6 degeneration with hysterical overlay and recommended medical discharge. At discharge liability was accepted for the applicant’s condition of; chronic strain of the cervical and mid thoracic spine with nerve root involvement. (The applicant’s Naval and civil disabilities were assessed as 60% and 5% respectively’).
13.In July 1970 the applicant following full disclosure of the sustained injury in 1966 and acceptance of liability by the Department of Defence, commenced employment as a Supervisor with the Police and Citizens Youth Clubs. In this employment role he was expected to supervise sporting activities including gymnastics only, not to physically participate. In point of fact his superiors instructed that under no circumstances was he to engage in any physical activities.
14.…
15.…
16.The WA Police Force [(‘WAPF’)] were keen for the applicant to be able to be a Supervisor and be able to take charge of a Police and Citizens Youth Club and so the applicant was enlisted in the Western Australian Police Service in December 1972 to facilitate this supervisory role.
18. In early 1974 [shown in the evidence at the hearing as having been 1972] the applicant suffered an injury to his neck laying volleyball when he was grabbed by another player (second neck injury). This caused a dramatic exacerbation of the applicant’s neck symptoms.’)
17.On 11 February 1974 the applicant was reviewed by Dr Frank Bell, Orthopaedic Surgeon at the request of Dr A Pearson, DMO for the Police Department because of on going neurologic symptomatology. Dr F Bell confirmed the applicants; “long history of trouble with his neck stemming back to an injury whilst he was an employee of HMAS Leeuwin. He has recurrent episodes of neck pain which radiate into his right shoulder and into his right arm. He has had a great deal of conservative treatment in the form of manipulation, intermittent traction at home and physiotherapy of various forms. Over a number of years I have traced radiological changes at the C6-7 joint on the right side causing narrowing of the intervertebral foramin from osteophytes and which would well explain his neck, shoulder pain and pain in his arm.” Dr F Bell then referred the applicant to Dr J Lekias, Neurosurgeon for consideration of his suitability as a candidate for interbody fusion of the affected joint in his neck .….
18.On 18 February1974 Dr J Lekias, Neurosurgeon in his letter dated 18 February1974 confirmed to Dr A T Pearson, DMO his views; ‘he has a c6/7 cervical spine lesion with a foraminal encroachment on the right side. As this lesion has been going for a number of years and moderately subsided on conservative measures I would agree that the time has come for him to be treated by anterior cervical fusion. …’
19.The applicant underwent an anterior interbody cervical fusion in March 1974 at Sir Charles Gardiner Hospital, which was accepted as a result of his compensable condition which he had been discharged with in 1970.
20. In a report dated 19 April 1974 Dr Lekias recorded the applicant as saying that he had ‘virtually completely lost’ all his pre-operative complaints with the exception of some occasional tingling in the right upper arm.’
21 On 27 July 1974 Dr Lekias repeated his observation that the applicant was virtually symptom free.
22 In August 1975 the applicant was involved in a minor motorcycle accident which jarred his neck (third neck injury) causing recurrent pain in the neck and arms and numbness in his hands, particularly in the right hand.
23. In a report dated 8 August 1970 Dr Lekias noted he reviewed the applicant as a consequence of the above injury. The applicant told Dr Lekias his motor-cycle went over a bump and gave him a whiplash type injury to the neck. Dr Lekias thought the applicant was rather nervous about the effect of this on his recent cervical fusion. Although the applicant complained of pain in the neck which radiated into the right upper limb a repeat x-ray showed the fusion a C6/7 was sound. Dr Lekias recommend the applicant wear a zimmer collar and rest for a week.
24. On 29 August 1975 Dr Lekias wrote that he could not explain the applicant’s ongoing complaints of pain but thought there may be an underlying cervical disc problem since the jolt on a motor-cycle. He recommended carrying out a cervical myelography to attempt to ascertain a cause for the ongoing complaint.
25. The applicant underwent a cervical myelography at the Royal Perth Hospital on 3 September 1975 which was reported as ‘normal’
26. In a report dated 12 September 1975 Dr Lekias wrote that he had reviewed the applicant who was improving following the recent cervical myelography procedure.
27. On 6 November 1975 Dr Lekias recommended the applicant be reviewed by Dr Gubbay, Neurologist, to see whether there was a neurological reason for the applicant’s continued complaint of numbness affecting his hands.
28. In March 1976 Dr Lekias performed a scalenotomy procedure on the right side of the cervical spine (second operation). Following this operation, on 4 March, Dr Lekias wrote that the applicant was ‘relieved of symptoms’ and recommended the applicant return to light duties.
29. On 20 April 1976 Dr Lekias wrote ‘I saw Constable Strawbridge on the 13th instant and am pleased to report that he is now completely symptom free and recovered from his operation.’ Dr Lekias thought the applicant could resume normal duties towards the end of June when he returned from leave.
30. In a report dated 23 November 1976 Dr Lekias wrote to the Department of Defence noting that the applicant had been in his care since 1974 at which time he diagnosed the applicant suffering from ‘cervical spondylosis’. Anterior cervical fusion at C6/7 produced a good surgical result. In 1976 the applicant was found to have right thoracic outlet syndrome and this was also treated with surgery producing relief of symptoms. Dr Lekias thought it was possible the injury of 1966 produced cervical spondylosis resulting in surgery in 1974. Dr Lekias had more difficulty associating then thoracic outlet syndrome with the 1966 injury but he could not be emphatic.
31. In a report dated 14 March 1977 Dr Henry Hill, Consultant Surgeon, wrote that when examining the applicant the applicant told him he was ’90 percent fit’. On examination Dr Hill noted the applicant had a full range of movement of the cervical spine with vague tenderness about the lower cervical spine. Dr Hill thought the applicant was fit for any work which did not entail heavy lifting. Dr Hill said he thought it was possible the ongoing neck symptoms which required the scalenotomy operation could have been caused by the 1966 injury but this was not certain.
32. On 9 May 1977 liability was denied for ‘right thoracic outlet syndrome’.
33. Between 1977 and 1990 the applicant had relatively few symptoms affecting his neck and did not require ongoing medical treatment. Similarly the applicant did not suffer from any incapacity for work in his job as a Police officer with the Western Australian Police Service and worked in both sedentary roles as well as active roles.
34. In February1988 the applicant was struck in the face and suffered a minor injury.
20.Between 1970 and 1990 the applicant until his Medical discharge 1995 albeit, interspersed with varying periods of physical incapacity as a result of a number of recurrences and exacerbations of his accepted condition, was able to engage in reasonable physical activities. The applicant although experiencing intermittent and episodic periods of relapsing and remitting neck, shoulder, arm and pain with breathing, was a person, who was endeavouring to lead a meaningful life. He was able to be meaningfully employed in a number of sedentary roles in the Police Force and having a reasonable quality of life managing his daily living activities. The applicant’s capacity to engage in reasonable physical activities and the fact that his records appear to show long periods of remission and an absence of medical consultations, is an indicator that his chronic neck pain was being managed largely and by and was demonstrated and facilitated by, his use of non prescription medications, diversionary strategies, striving to lead a careful, sedentary lifestyle to enable a reasonable quality of life and possessing an exceptionally uncomplaining personality.
21.In February 1990 the applicant suffered an exacerbation of his chronic cervical and thoracic nerve pain when he helped a friend unload a motorbike from a trailer. The motorbike slid off the ramp whilst the applicant was holding it causing a jarring exacerbation to his chronic cervical and thoracic nerve pain. The applicant suffered a recurrence of his neck pain and a decrease in function of his neck. (The fourth neck injury).
22.In a report dated 8 March 1990 Dr [Vaughan] observed that the applicant moved in pain and had difficulty dressing and undressing. Dr Ron thought the applicant had signs of a C8 nerve root compression on the right side. The applicants reported symptomatology at this point in time was identical to those reported when the applicant was injured in September 1966. There was a reduction in right triceps reflex and a CT scan was reported to show significant degenerative changes in the cervical spine. Dr [Vaughan’s] clinical diagnosis was that a ‘partial extrusion most likely at the C7/T1, there may have (been) a large protrusion into the C7 accounting for the C8 and C7 involvement.”
23.In April 1990 Dr Richard Vaughan, Neurosurgeon performed an anterior decompression and C5/6 fusion. (The third operation).
38. The applicant returned to work as a Police officer after a few months convalescence.
24.In May 1992 the applicant sneezed violently whilst driving a police car which caused an exacerbation of his chronic cervical and thoracic nerve pain, of left sided neck and shoulder pain radiating down into the arm and hand associated with a burning and tingling sensation and some sense of loss of power in the left hand. (Fifth neck injury). This reported symptomatology was identical to those reported when the applicant was injured in September 1966.
25.As a result of the above the applicant was hospitalised at Mercy Hospital Mount Lawley where for 3 months he was treated conservatively in bed with neck traction. The applicants symptomatology was relieved while in traction however, when out of traction all of his symptoms returned immediately. Radiological examination conducted at this time confirmed; “Flexion is accompanied by about 4mm of anterior slipping of C7 on T1”. These radiological findings were considered unacceptable and causing the applicants’ symptomatology. As a result of these findings and because Dr Richard Vaughan, Neurosurgeon was overseas at the time, the applicant was referred to Dr G Wong, Neurosurgeon.
41 Dr Wong requested nerve conduction studies and diagnosed severe left ulnar neuropathy at the elbow and mild right ulnar neuropathy at the elbow. In a report dated September 1992 Dr Wong said that he thought there was no evidence of nerve root compression following a cervical myelogram.
42. In October 1992 Dr Wong performed bilateral ulnar nerve decompression surgery (fourth operation) and bilateral carpal tunnel decompression.
26.On 1 October 1992 Dr G Wong Neurosurgeon performed a posterior cervical fusion at C7/T1 level. (Fifth operation). Following the operation the applicant had pain breathing, interscapular pain, pain involving both arms, tingling in the fingers and turning the neck and flexing the neck produced tingling down the back and into the groin and into the penis, particularly when standing and passing urine. The applicant’s neck had been jarred yet again when a portion of the operating table fell away as his head was resting on it. The applicant’s reported symptomatology at this point in time was identical to those reported when the applicant was injured in September 1966.
44. During 1993 the applicant underwent bilateral surgery for painful arc syndrome affecting his shoulders.
27.In February 1994 the Applicant suffered a further exacerbation of neck pain and was admitted to St John of God Hospital Subiaco under the care of Dr Richard Vaughan, Neurosurgeon. He was treated conservatively for 1 month with rest in bed. During this time an EMG was performed by Dr Carroll, Neurologist. These findings were consistent with and confirmed a bilateral C8 radiculopathy, with the left worse than the right.
47 In 1994 the applicant was reviewed by Dr Paul Graziotti, Pain Management Specialist, who implanted a spinal stimulator to relieve symptoms of pain (sixth operation).
28.In August 1994 Dr R Vaughan, Neurosurgeon operated on the Applicant and performed a cervical fusion again at the C7/T1 level however this time from an anterior approach and with the insertion of fusion wires. (Seventh operation).
29.In September 1996 the Applicant was referred to Dr Paul Graziotti, Pain Management Specialist for a review of his continuing chronic neurologic symptomatology. The outcome following a thorough examination of the Applicant’s pain implanted a spinal nerve stimulator to assist in relieving his chronic neurologic symptomatology.
30.In August 1995 the Applicant was reviewed by a Medical Review Board. This Board comprised; Dr Kim Stanton, Dr Geoff Phillips and Dr Alan Skirving who all documented their finding’s in relation to Mr Strawbridge’s upper-limb function in their letter dated 7/8/95 and I quote; “a painful neck with pain radiating to both arms with associated paraesthesia over the ulnar aspect of his hands intermittently and also quoting; ... “however he continues to have neck pain radiating to both arms that is made worse by exertion and weakness in both hands,” and including “When he extends his neck he experiences paraesthesia in both hands.” The Board also commented; “Mr Strawbridge has gross changes in his cervical spine. He has attempted to continue to work for many years in spite of significant disability. We believe he has now reached a stage where he his totally and permanently unfit for work.”…
31.As a result of the Medical Review Board’s findings the Applicant was medically retired from the WAPF in November 1995. The Applicant then applied for and commenced receiving Incapacity payments from MCRS under the Safety, Rehabilitation and Compensation Act 1988, until he turned 65 years of age, for his accepted conditions namely: chronic strain of the cervical and mid thoracic spine with nerve root involvement.
32.In February 1996 the Applicant underwent surgery to remove the C7/T1 wiring and to excise a prominent spinous process. (Eighth operation). This procedure led to some improvement in symptoms but no resolution of his persistent neck pain, numbness in the hands and pain related to breathing.
52. In September 1996 the applicant underwent a second rotator cuff operation on his right shoulder.
53. In September 1996, Dr Graziotti observed the applicant had very little movement of the cervical spine and a ‘lot of abnormal pain behaviour and almost no movement of the left shoulder.’
33.In a claim form lodged on 20 October 2003 (30 March 2003) the Applicant claimed lump sum compensation for permanent impairment of his cervical spine pursuant to Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide).
34.In a determination dated 23 July 2004 liability was accepted for a 15% permanent impairment pursuant to Table 9.5 of the Guide. The Applicant was offered compensation of approximately $39,835.21 pursuant to section 24 and section 27 of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act).
35.On 12 August 2004 the Applicant wrote requesting the Melbourne office hold the election form related to the above, [(offer)] until certain matters were resolved.
36.On 7 October 2004 the Applicant lodged a claim for lump sum compensation for permanent impairment assessed under the Guide for a number of other impaired parts of the body related to his original accepted compensable condition. The Applicant provided assessments completed by Dr Frank Wilson, General Practitioner on 13 May 2005 and Dr Richard Vaughan, Neurosurgeon on 8 August 2005, outlining their assessments of the impaired parts of the body as:
29.1 Respiratory system – 45% permanent impairment pursuant to Table 2.1 of the Guide;
29.2Upper limbs – 30% permanent impairment pursuant to Table 9.4 of the Guide;
29.3Lower limb function – 20% permanent impairment pursuant to Table 9.5 of the Guide;
29.4Cervical spine – 15% permanent impairment pursuant to Table 9.6 of the Guide;
29.5Thoraco–lumbar spine – 15% permanent impairment pursuant to Table 9.6 of the Guide;
29.6Reproductive system – 15% permanent impairment pursuant to Table 11.1 of the Guide.
37.Dr Vaughan and Dr Wilson confirmed (thought) the impairments became permanent when the Applicant was medically retired from the WAPF in November 1995.
57 In a determination dated 13 April 2005 liability was accepted for a 15% permanent impairment pursuant to Table 9.5 of the Guide. The applicant was offered compensation of approximately $39,835.21 pursuant to section 24 and section 27 of the Safety, Rehabilitation and compensation Act 1988 …’
38.In a letter dated 20 July 2005 the Applicant requested liability be extended to include;
30.1 Respiratory system - ventilatory function
30.2 Musculo-skeletal – upper limb function
30.3 Musculo- skeletal – lower limb function
30.4 Reproductive system – male.
39.In a determination dated 11 October 2005 the Applicant’s claim for an extension of liability for respiratory system, upper limb impairment, lower limb impairment and reproductive system impairment was denied.
40.On 7 November 2005 the Applicant requested a reconsideration of the determination dated 11 October 2005.
61 In a reviewable decision dated 5 January 2007, the determination dated 11 October 2005 was varied such that liability was accepted for the condition ‘erectile dysfunction’. The remainder of the decision denying liability for impairment of the applicant’s respiratory system, upper limbs and lower limb function was affirmed.
62 On 25 February 2007 the applicant applied to the Administrative appeals Tribunal to review the reviewable decision of 5 January 2007.
Decision under Review
4. In the decision under review the decision maker said the issue for her consideration was whether the claimed conditions were causally related to the applicant’s former military service from which he was discharged on 26 June 1970 or as a result of his accepted condition. She considered the evidence then available in respect of each of the sub-heads of claim and decided adversely to the applicant. The applicant contends that the most recent available evidence supports a finding in his favour with respect to the three sub-heads of review now under consideration.
Witnesses
5. At the hearing of the application for review the applicant was unrepresented but was assisted by his wife, each of whom gave sworn evidence and were cross-examined. Expert witnesses, upon whose reports the applicant relied, were also called for cross-examination. These were Dr Goodheart, Dr Vaughan, and Dr Ker.
6. The respondent called Dr Rosen and relied upon his report and evidence.
The applicant’s evidence
7. The nature of the applicant’s claim and its history has been set out above.
In his witness statement the applicant attested to the occurrence of the circumstances largely accounted for in the claim earlier set out.
In his oral evidence the applicant gave evidence that when he urinates he experiences a spreading pain from the back of his neck down between his shoulder blades and, if severe, to his penis and knees, like a continual electric shock. He sought to give this evidence in connection with his claim to suffer L’hermitte’s syndrome.
8. In cross-examination the applicant said that he had suffered symptoms of a recurring character which have interfered with his normal activities of daily living since he came out of hospital in 1966. He instanced difficulties of trying to wash his back, in relation to which he could not reach around without severe pain.
It was put to him that the documents pertaining to his placements and employment after September 1966 did not show any reference to symptoms inhibiting him and, in some cases, referred to his abilities in various sports. He sought to explain a statement in his 1970 application for appointment in the Western Australian Police Force that he did not suffer any ill effects as result of the September 1966 incident. He said he thought he could do the job and was not suffering any ill-effects at the time. After appointment as a constable he had performed physical activities incidental to the role of that office on the beat.
In 1974 (revised by later evidence to 1972) the applicant was injured when ‘playing’ (also the subject of later evidence) volleyball and another player grabbed him around the neck. He consulted Dr Bell and in 1974 Dr Lekias performed his first cervical fusion. Up until then he had not needed to see a doctor complaining about ongoing neck symptoms. In the further course of cross-examination of the applicant it was established that the volleyball injury occurred prior to a gymnastics injury in February 1972 and had led to treatment and an operation in 1974.
In August of 1975 the applicant had a minor motorcycle accident which jarred his neck and led to a worsening of his symptoms. This led to a scalenotomy being performed on his shoulder muscle. He next saw Dr Hill on 14 March 1977. From then until 1990 he did not consult a medical practitioner. His evidence was that he treated himself with medication. He accepted that at times his symptoms were quite settled but maintained he never had full relief from pain from the neck and arms.
A motorcycle incident in 1990 (when a motorcycle being unloaded fell down with a jar) led to the applicant consulting Dr [Vaughan] and having an anterior decompression and a C5-6 fusion in April of that year from him.
In May of 1992 the applicant had sneezed while driving a police car, causing his symptoms to worsen and him to consult Dr Wong, a neurosurgeon. In October 1992 Dr Wong performed a cervical fusion at C7-T1 as well as surgery on his elbow and his wrist, the latter for bilateral carpal tunnel decompression. This was the fifth operation on his neck. In 1993 the applicant had a shoulder injury, a rotator cuff tear. In 1994 he consulted Dr Graziotti. Later a spinal stimulator was implanted in the applicant and a fusion of C7-T1 effected in August of that year. In September of 1996 some further rotator cuff surgery was carried out on the applicant’s right shoulder.
9. In re-examination the applicant said that the descriptions of his abilities in the applications and references were generalised reports of his abilities and skills. When he had said he suffered not ill effects it was in relation to performing the role of a supervisor, not a player. Also that although there was some interference with his activities of daily living and discomfort here and there after he had been medically discharged, it did not stop him getting a job or from having a reasonable life.
10. Later the applicant gave evidence that he had sailed cataramans (firstly a Surfcat and secondly a Hobie Cat) on the Swan River, the former commencing in 1972 and extending for two and a half years. He became rated among the first five Hobie yachtsmen in Western Australia. He sailed competitively without back support, without a collar, and was involved in neck and body movement. He was assisted by others to remove the craft from the water and to complete his entry into the wetsuit. He claims to have suffered some pain which he eased on coming home by getting into hot showers to warm up his body. About 1979 he gave up sailing because rough waters resulted in hurt to his neck.
Applicant’s Wife’s Evidence
11. In her written statement the applicant’s wife gave her evidence concerning the 1966 injury to the applicant and his post-injury steps taken to relieve various symptoms from it. Her evidence was that the symptoms which caused the applicant to be medically discharged from the navy continued to plague him with gradually increasing frequency and intensity. She said that his symptoms continued to plague him when he returned to work. She spoke of his subsequent injuries and continuing symptoms.
12. In cross-examination the applicant’s wife said that the applicant’s diminution had been a gradual process, one of progressive, unrelenting deterioration. She said that the applicant had stopped playing judo, hockey and basketball before he had left the Navy. She had seen him play basketball in April 1967 but that was his last game. He experienced symptoms, treating them with ‘over the counter’ medications and hot showers.
In relation to the 1972 injury, the applicant’s wife accepted that this had increased the underlying symptoms with which he had lived on a daily basis. Likewise the injury in August 1975 had been an acute exacerbation of an underlying disease. Neither injury had required hospitalisation or time off work.
Mrs Strawbridge accepted the description ‘intermittent discomfort’ as applicable to what the applicant had experienced from injury in 1966 until 1974 (when the 1972 injury had been treated). With regard to the description of the applicant’s condition from then until 1990 as being one in which his ‘symptoms settled’, she said that the symptoms were settled to the degree that the applicant did not need to go to hospital or see a doctor. However, the symptoms were still present and he learned to live with them on a daily basis. This had not meant that they were cured.
Mrs Strawbridge accepted that the symptoms had worsened as a consequence of the injuries in 1990 (the motor bike incident) and 1992 (the sneezing incident).
Respondent’s witness Dr Rosen
13. Dr Rosen practices as a consultant neurologist. He submitted two written reports. In the summary and assessment to his first report dated 10 September 2007 he expressed the opinion that ‘it is likely that the applicant sustained a significant musculoskeletal strain injury as the initial event in 1966 with minimal, if any, neurological injury.’ He considered it to be likely that some of the treatments the applicant received (with the benefit of hindsight) exacerbated the effects of his initial musculoskeletal injury. He concluded that the applicant did not have ‘significant neurological impairment.’
14. In response to specific questions put to him for report Dr Rosen found that ‘on the balance of probabilities, the injuries sustained by [the applicant] in 1966 do not continue to directly materially contribute to his current condition.’ He based that opinion on the fact that at the time of the original injury there was no evidence for any neurological impairment according to the neurologist who examined him at the time. He considered that the neck injury in 1990 could plausibly account for the subsequent relapse. In his view, ‘it is more plausible that the progression of painful cervical degenerative disease and chronic pain in [the applicant] was due to the effects of previous cervical fusion surgery rather than the result of the original injury.’ He said this could be traced from the 1990 injury.
Dr Rosen’s opinion was that the effects of the 1966 injury had ‘ceased close to the time that he was discharged from the Navy.’ He did not accept that the effects had persisted up to the time of the 1990 injury. This was because the applicant had been ‘able to join the police force as a constable, teach gymnastics and play volleyball (even though he maintained that he “didn’t jump” whilst playing volleyball).’ These factors made it ‘highly implausible’ that anyone with any significant ongoing pain due to degenerative cervical spine disease of any severity could undertake such activities.
15. Dr Rosen’s second report was dated 8 January 2008. He commenced by stating that he was still of the opinion that, on the balance of probabilities, the September 1966 injury had not continued to materially contribute to the applicant’s current cervical spine condition. He said that his opinion had been influenced by the following:
'a) There is no clinical or other evidence that Mt Strawbridge sustained any neurological damage to the nerve roots, the cervical spine or brain as a result of the injury in September 1966.
b) The clinical presentation and medical record is most consistent with Mr Strawbridge sustaining a self-limiting, soft tissue musculoskeletal neck strain injury in 1966 from which he eventually recovered to become asymptomatic.
c) After medical discharge from the Navy in 1970 Mr Strawbridge remained physically active both within the Police Force and in other activities until the accident in 1974.
d) After medical discharge from the Navy in 1970 Mr Strawbridge sustained further injuries leading to clinical presentations most consistent with acute symptomatic exacerbations of what was initially at least and at that time of discharge from the Navy asymptomatic cervical spondylosis.
e) Although Mr Strawbridge joined the Police Force in a strictly sedentary capacity the record indicates Mr Strawbridge’s injuries subsequent to 1966 resulted from a level of physical activity of the type not really consistent with a sedentary lifestyle nor usually compatible with neck pain.
f) Until 1990, the record shows long periods of remission from pain during which persisting spontaneous chronic neck pain was not a cause for medical consultation as consultations and interventions for neck pain were conspicuously absent during this period.
g) The later development of chronic pain in the 1990’s and beyond can be explained on the basis of the effects of recurrent trauma on a cervical spine progressively compromised by effects of surgical fusion and degeneration.’
16. In his second report Dr Rosen examined in detail the extensive medical history of the applicant. He found that ‘the available medical record does not support the presence of chronic ongoing cervical pain from the time of [the applicant’s] discharge from the Navy until the time of the ‘volleyball non-playing match’ in 1974 nor do other aspects of the history corroborate this fact.’ He continued:
‘the available facts of the clinical history are quite consistent with someone who upon discharge from the Navy in 1970 had recovered from the effects of a significant musculoskeletal neck strain injury in 1966 and who had unfortunately sustained a recurrent significant musculoskeletal injury in the course of his new job with the Police Force, albeit of a lesser degree in terms of physical force than the one sustained in 1966.’
He therefore continued to be of the opinion that ‘on balance of probabilities, the September 1966 injury has not continued to materially contribute to [the applicant’s] current cervical spine condition.’ Rather ‘the balance of probabilities is in favour of chronic asymptomatic or minimally symptomatic cervical spondylosis with acute symptomatic exacerbations as a result of subsequent injuries, the most important of which occurred in 1974.’
He concluded by stating that ‘on the balance of probabilities, the September 1966 injury has not continued to materially contribute to [the applicant’s] current cervical spine condition nor made any contribution to any impairment now suffered by the applicant in relation to any of the body systems listed, namely respiratory, upper and lower limb function.’
17. In cross-examination Dr Rosen agreed that the applicant was obviously disabled at the time of his discharge from the Navy. However, he considered he had made a very substantial recovery beyond that time; that is, he had then become asymptomatic. He repeated his view that the applicant did not have any evidence of significant neurological injury. He declined to testify that the September 1966 injury did not cause some damage to his cervical spine but he did not consider there was any evidence of it. The applicant’s history of relapses and remissions seemed, in his view, to depend on injuries and other activities without which the deterioration might not have occurred.
Dr Rosen was referred to early medical reports made after the September 1966 injury. On 13 September it was recorded that the right biceps ‘just seen less than left.’ On 22 September Dr Fisher recorded that his examination ‘shows no weakness or reflex asymmetrical in limbs.’ Dr Rosen accepted that the former report, if accurate, could apply dysfunction of the root supplying that muscle. However, it lacked any corroboration in the report of Dr Fisher. He was inclined to accept the view of Dr Fisher in that situation.
Dr Rosen was also referred to the further file note to the effect that there was ‘some diminution of the Right biceps jerk and cutaneous sensation’ which ‘appeared to be diminished to pin prick over the C5 & C6 dermatomes.’ He accepted that the note suggested a neurological condition. He considered it sufficient to revise his conclusion if the evidence of Dr Fisher was discounted. Nevertheless he agreed that the note of 13 September and the further note were both consistent findings.
Dr Rosen was referred to Lhermitte’s syndrome which the applicant testified to suffering from. [This was accepted at the hearing as being a symptom rather than a sign, describing a subjective sensation rather than an objective finding. Also as being fairly specific symptom of cervical irritation. The sensation could arise from tipping the head forward, resulting in pain or electric sensation shooting down the spine and into the legs]. Dr Rosen accepted that cervical spondylosis could cause the syndrome although he would expect that there would be some encroachment on the cervical cord or root cord in association with the spondylosis. On the balance of probability there was not such encroachment in the applicant’s case.
In his evidence the applicant had testified to having a difference in feeling between his right arm and shoulder girdle, described as a glove type hyperaesthesia. Dr Rosen said this implied a problem with the peripheral nerves in the most distant part of the limb. He said it was a peripheral neuropathy distinct from any injury to a nerve root or to the spinal cord. Further he testified that trauma to the head and neck did not necessarily mean injury to the spinal cord and spinal column.
Applicant’s witness Dr Ker
18. Dr Ker has practised as a consultant physician in rehabilitation medicine for in excess of 22 years. He produced two reports relating to the applicant. The first was dated 18 February 2008. In it he was of the opinion that it appeared the applicant’s initial incident in 1966 was ‘of substance’, having required four weeks of hospitalisation. He said there was some symptomatic evidence of the applicant’s pain remaining consistent, though episodic, in the cervical spine. He concluded that there is an entirely reasonable association between the applicant’s incident of injury, the persistence of his symptoms, and the evidence of specialist orthopaedic review up until the time of the determination of his need for anterior cervical fusion at the C6/7 level.
19. In his second report dated 1 May 2008 Dr Ker accepted as reasonable and as entirely plausible an opinion of Dr Cherry to the effect that the applicant’s symptomatology was an autonomic dysfunction syndrome from a spinal cord injury with an intact neuraxis. This was a reference to a report dated 13 September 2006 from the Perth Human Sexuality Centre in connection with the applicant’s claim for erectile dysfunction. Dr Cherry, after referring to what he understood to be the applicant’s symptoms, stated that they were ‘consistent with his original injury and the inherent damage that occurred to the cervical and upper thoracic region of the spinal musculo-skeletal system.’ He cited Bors and Comarr, Neurological Injury p89 in support and Dr Ker accepted this as reliable reference. In our opinion, Dr Cherry was not limiting this evidence to the issue of sexual dysfunction. He addressed that issue under a further heading following his consideration of these issues.
20. In cross-examination Dr Ker said that he had not seen any medical records relating to the applicant’s initial period of hospitalisation in 1966. He had also not had available to him any radiological studies prior to 1974.
Asked whether the reports of Dr Rosen had caused him to change his view, Dr Ker said he referred in his report to a reasonable association between the event in 1966 and the applicant’s treatment up until the time of his first cervical fusion. He accepted that he had previously been unaware of the volleyball incident (1972). He considered it could not be discounted as a factor precipitating increased pain for the applicant. From 1974 to 1990 he considered the applicant had not been ‘significantly symptomatic.’ Therefore, he said it was difficult to postulate how the original injury sustained in 1966 could still be playing a part in his management. He found it much more likely that the ongoing neck pain related to ongoing cervical degenerative disc disease.
21. In re-examination Dr Ker accepted that Dr Cherry had provided an entirely plausible explanation when he stated that the applicant appeared to have an autonomic dysfunction syndrome. However, he accepted that providing proof was difficult. He realised that contemporary imaging of the spinal cord were precluded by the nature of the applicant’s medical implants.
Dr Ker also accepted that it was reasonable for the symptoms supporting the finding of an autonomic dysfunction syndrome to be attributed to the injury in 1966, although he could not prove that from one days observation.
22. In response to questions from the Tribunal, Dr Ker said there had obviously been periods from 1974 to 1990 when the applicant had not had intrusive pain and has not had to seek substantive medical treatment for it. Nevertheless, he regarded a Hobie 14 Cat as a particularly lively vessel to sail, requiring a fair amount of agility.
He considered the autonomic dysfunctional syndrome had started following his neck injury while he remained in naval service.
He was of the view that the applicant’s limb disability related to the presence of radiculopathy and was associated with some of the later disc degenerative changes. He did not consider the 1974 upper limb symptoms were of a significant part of the history so that any radiculopathy that he had post dates the first cervical fusion.
Dr Ker was aware of the fact that the applicant had rotator cuff surgery to both shoulders and surgery to release both carpal tunnel and ulna entrapment. Nevertheless he regarded his current symptoms as more likely related to other pathologies.
Having had his attention drawn to the correspondence from Drs Bell and Lekias in February 1974, Dr Ker said they suggested to him that his earlier impression that there was basically a degree of connection with the events of 1966 through the subsequent eight years. Whether the surgery in 1974 was related to the neck injury as distinguished from the volleyball incident (in 1972) depended on weighing the evidence.
Applicant’s Witness Dr Goodheart
23. Dr Goodheart is a Consultant Neurologist. He examined the applicant in February 2007 and provided a report dated 12 March 2007. He concluded that ‘there can be no doubt that [the applicant] was suffering with significant cervical spondylosis with radicular symptoms in both arms at the time of discharge from the Navy in 1970. These symptoms have increased over a period of years. He has developed symptoms of cervical myelopathy with lower limb involvement.’ In summary he found the applicant was suffering with ongoing upper limb symptoms directly related to his cervical injury and subsequent requirement for surgery through a radicular (nerve root) mechanism. Also from lower limb symptoms on the basis of his longstanding cervical disease. He said there was clinical evidence to suggest cervical myelopathy with irritation of the spinal cord in the neck interfering with the nerve function to the lower limbs. Further that the applicant had suffered with L’hermitte’s syndrome for many years. Finally that there was evidence to suggest a component of the applicant’s chest pain and respiratory symptoms could be directly related to his spinal disease.
24. In cross-examination Dr Goodheart was taken through each of the paragraphs (a) to (g) on the second page of Dr Rosen’s second report. In relation to a number of the paragraphs Dr Goodheart said that had the report been presented to him earlier he would have liked to question the applicant concerning the circumstances referred to in the particular paragraphs. He accepted that Dr Rosen has been given access to a very wide range of the medical reports and had reviewed the history closely. However, he was of the view that Dr Rosen had looked at the evidence which supported the views he had expressed in pars (a) – (g) rather than presenting all the evidence.
With reference to the report of Dr Fisher on 22 September 1966, he accepted that it was the only report at that time from a neurologist. However, he would not have preferred that evidence over the report of the daily physician (undated) recording the finding of a depressed right biceps jerk and diminishment of cutaneous sensation over the C5 and C6 dermatomes. He regarded that as very significant because it was a finding of a neurological sign at the time of the immediate aftermath of the injury. In his view, Dr Rosen’s description of the injury as a soft tissue musculoskeletal neck strain should also have included reference to some neurological damage.
In the daily physician’s note it was also stated that ‘the problem in this man is one which fairly commonly recurs from fairly forcible twisting injuries to the neck without any bony pathology.’ Dr Goodheart accepted this as a reasonable statement. Additionally he pointed out that in 1966 the tools of investigation were limited to X-rays and very little else, it not being until after 1973 or later that there was access to CT scanning. He said that the absence of MR scans to show nerve root irritation or otherwise, the record of diminution of the right biceps was very important. He affirmed that there could be neurological symptoms without necessarily any particular bony pathology.
With respect to L’hermitte’s syndrome, he stated it was a fairly specific symptom of cervical cord irritation. In the case of the applicant, an MR scan was contraindicated because of the presence in him of a spinal cord stimulator.
In Dr Goodheart’s opinion, the history of the applicant should be perceived as ‘a step-wise problem’. That is, that the applicant was maintained with physiotherapy and with stretching and manipulation so that his symptoms were manageable. He regarded the surgical interventions as overall achieving very little.
25. In re-examination the witness was referred to two letters. The first from Dr Bell to Dr Pearson of the Police Department was dated 11 February 1974. In it Dr Bell expressed the view that the applicant ‘has had a great deal of conservative treatment in the past in the form of manipulation, intermittent traction at home and physiotherapy of various forms.’ He quoted the applicant as stating then that all these measures relieve his pain while under treatment but the pain then returned. Further, that over a number of years he had ‘traced radiological changes at the C6-7 joint on the right side causing narrowing of the inter-vertebral foramin from osteophytes and which would well explain his neck, shoulder pain and pain in his arm.’ The second letter was from Dr Lekias to Dr Pearson, dated 18 February 1974. He confirmed Dr Bell’s description after having examined the applicant and recommended the applicant be treated by anterior cervical fusion. Dr Goodheart said this was his understanding, namely that ‘things came and went’ for the applicant. He read these letters as referring to the ongoing effect of the 1966 injury and not only to an injury referred to in February 1972.
Applicant’s Witness Dr Vaughan
26. The applicant relies upon four reports of Dr Vaughan, a consultant neurosurgeon.They are dated 8 March 1990, 23 March 1995, 21 April 2008 and 7 May 2008.
27. In his first report, Dr Vaughan reported that the applicant had a long history of cervical problems and thought surgery may be necessary in connection with his C7-8. In cross-examination he accepted that the applicant’s injury in February 1972 and on 2 March 1990 were discrete injuries.
28. Dr Vaughan was referred to a letter from a Medical Board dated 7 August 1995 to the Principal Medical Officer of Environmental Health. This stated that the applicant had initially injured his neck in 1966 and experienced ‘intermittent discomfort’ until 1974 and then to 1990, when Dr Vaughan had operated on him. Then in 1992 Dr Wong, a colleague of Dr Vaughan, had performed bilateral ulna nerve decompression surgery. He considered these could be symptomatic of a traumatic condition affecting the cervical chord. He called this the ‘double crush state’, where there are two sources of a condition, one being central and the other peripheral. In re-examination he stated that the double pathology involved was cumulative in terms of neck trauma so that all the incidents built on top of the 1966 injury. He placed weight on the bicep changes reported in the undated medical notes by the daily physician relating to the applicant’s injury in 1966.
29. In his report of 21 April 2008 Dr Vaughan had expressed the view that it would have been very interesting if the investigations available today had been available at the time of the applicant’s original injury. He stated there that it would have been more likely than not that the applicant had suffered a high cord injury being a stretch injury or similar or sustained an intracord haematoma and/or suffered concomitant vascular injuries such as a localised section which could have both vascular and cord consequence. In cross-examination he said that MR scanning and newer imaging could have removed a lot of possibilities and given more certainty. This made it very difficult to address the issue of the applicant’s injuries.
However, Dr Vaughan’s evidence was that if someone came in now with an injury and was in hospital for three weeks, it would indicate to him that an injury had occurred to the spinal column and/or the neuraxis. There must have been a concern that there was an injury suffered. Further the way Dr Tiller had treated the applicant on the way to hospital also supported this view. These facts showed, in his opinion, that the injury was considered a significant event of the time, be it skeletal and/or cord.
30. On the issue of L’hermitte’s syndrome, he said that today it was usually associated with a condition called myelopathy whereby there is abnormality of the spinal cord which is interfered with by neck position. He had not diagnosed the applicant with this condition.
31. He accepted that the reports of Dr Rosen were very thorough. He accepted Dr Rosen’s description of the applicant’s injury in 1966 as ‘a significant …injury’ but did not agree it could be described as ‘musculoskeletal strain.’ He agreed that the event in 1966 had receded into the background considerably in view of the history which followed. However, he saw the problem with cervical cord is that you can have a condition that lies quiescent for a time and then reappears. He saw the injury as one which essentially lay quiet and was grumbling for a long time, to which other incidents were added. He did not agree with Dr Rosen’s opinion that the initial injury of 1966 had stopped and finished. In re-examination he agreed that his view was assisted by the letters written by Dr Bell on 11 February 1974 and Dr Lekias on 18 February 1974.
32. In response to questions from a member of the Tribunal, Dr Vaughan stated that he considered the applicant had a hypersensitive spinal cord and a spinal column, cervical column, being grossly abnormal. He considered the applicant had autonomic dysfunction syndrome in part. He said there was pressure on the applicant’s nerve roots, a radiculopathy going back to the time of the operation by Dr Lekias.
Assessment of Evidence
33. There are a number of features of the evidence which militate against acceptance in full of the opinion of Dr Rosen to the effect that the 1966 injury ceased to have any effect after its occurrence and treatment. They are as follows:
(1) The applicant gave evidence that the pain in his neck and elsewhere had continued since the 1966 injury. The evidence of his wife corroborated that statement. The continuity of the pain was a constant of their evidence. They said that even when the applicant participated in sailing, he continued to experience some degree of pain afterwards. They maintained that continuity of the pain from the neck was not evidenced by medical reports for many years from 1974 to 1990 because the level of pain was such that the applicant could satisfactorily rely upon his own treatment of the pain.
(2) The evidence in the undated note among the applicant’s medical history at the time of the 1966 injury of diminution of the right biceps jerk is evidence of a neurological aspect to that injury. While Dr Rosen preferred the evidence of the neurologist Dr Fisher to the effect that there was not any asymmetry, Dr Goodheart preferred the view of the daily physician and considered it very important. Dr Rosen had not previously considered this evidence of absence of symmetry.
(3) The existence of the pain from the 1966 injury is supported by the letters from Dr Bell dated 11 February 1974 and Dr Lekias dated 18 February 1974.
(4) After seeing Dr Cherry’s report, Dr Goodheart found that the applicant had Lhermitte’s syndrome and said that was symptomatic of cervical cord irritation.
(5) Dr Vaughan concluded from the evidence that the applicant had spent three weeks in hospital following his 1966 injury, and the evidence of the manner in which Dr Tiller had handled him on the way to hospital, that the applicant had suffered damage to his spinal cord and/or his neuraxis. Dr Ker also considered the length of the hospitalisation on that occasion as important.
(6) Dr Vaughan saw the evidence of later operations on the applicant’s periphery as showing that the applicant had a double crush state. That is, that there were peripheral and central aspects to his injuries.
(7) Dr Vaughan accepted that the 1966 injury to the applicant’s cervical area could be quiescent and just ‘grumble along.’
(8) Drs Ker and Vaughan agreed with Dr Cherry that the applicant’s symptoms establish that his September 1966 injury caused an autonomic dysfunction syndrome as described in the text by Bors and Comarr.
The medical experts were agreed that that absence of MR scans handicapped their capacity to get to the facts concerning the applicant’s 1966 injury. The absence was due to the later introduction of the technique and, at the present, to the presence in the applicant of material antithetical to use of the technique. The result was that they accepted the case was a difficult one.
34. The respondent contends that the applicant’s evidence of a history of a high level of unremitting symptoms since September 1966 is simply not supported by contemporaneous records; especially in respect of his police career, sailing activity and the references in the various medical reports. The respondent submits that the medical evidence relied upon by the applicant, so far as it relies upon a history of unrelenting continuing symptoms, cannot be fairly accepted.
35. This submission and the expert testimony of Dr Rosen relies for its conclusion and effect partly upon the absence of medical records. However, that absence is entirely consistent with the applicant having successfully managed such level of pain as was in his life from time to time. His participation in sailing, while requiring caution in the acceptance of his evidence of continuing pain, also indicates how well he did become at the time he engaged in it but is consistent with the evidence that he nevertheless suffered some level of pain as a consequence of such participation. The applicant’s evidence, supported by that of his wife, was that there was a continuity of pain from the time of the September 1966 injury. (We approach the evidence of the applicant’s wife with some caution, given her obviously committed position towards the applicant’s case. Nevertheless we accept that she gave her evidence honestly, as she perceived matters coming within her purview). That thread provides the causal link on which the applicant’s case relies. It is not unfair to describe the history of that link in the language used by Dr Vaughan as involving ‘grumbling on.’
36. We do not consider that the thoroughness of Dr Rosen’s consideration of the lengthy medical records must necessarily outweigh the expert opinions of the applicant’s experts. Dr Vaughan and Goodheart had their own reasons for nevertheless accepting the applicant’s case.
37. In our opinion, while the application is a difficult one to resolve, particularly due to the inability to utilise contemporary methods of analysis, the evidence listed above supports a conclusion that the applicant’s injury in 1966 continued to be causative of his neck pain commencing from that time. At times the pain was quiescent. At times it was exacerbated by subsequent injuries and operations. There was, however, a continuity dating from the 1966 injury, the effects of which had not become asymptomatic after the treatment for that injury.
38. The hearing appeared to be conducted on the basis that the respondent did not contest that the upper, lower and respiratory effects, the subject of the applicant’s claims, derive from his cervical condition. What was contested was whether there was neck pain which had continued to be caused by the 1966 injury. However, in the respondent’s written submissions, challenge was made to each of the three conditions in issue even if the applicant succeeded in establishing continuity in the effects of the September 1966 injury.
39. With regard to the upper limbs, the respondent pointed out that Dr Rosen’s neurological examination did not reveal abnormality and no neurological impairment was found. He did not accept Dr Goodheart’s view that cervical myelopathy was present. Nor did Dr Vaughan accept that there was a myelopathy. However, the applicant’s experts Drs Vaughan and Goodheart reached a view contrary to that of Dr Rosen and did not accept that the effects of the 1966 injury to the applicant had become asymptomatic. There is therefore a conflict between the evidence of the applicant and his experts and of Dr Rosen. Dr Rosen’s views were essentially founded on a detailed examination of the written medical evidence. There are a number of features of the evidence made apparent in the hearing which are supplemental to that record and which favour on balance a different conclusion to that reached by Dr Rosen. These are set out in a list above. In our view these considerations establish the applicant’s claims that the neck injury contributed in a substantial or considerable degree to his upper limb symptoms.
40. With regard to the lower limbs, we do not accept that the evidence of the applicant that he experienced L’hermitte’s syndrome can support a finding that the 1966 neck injury was causative of the applicant’s lower limb loss of function to a substantial or considerable degree. No evidence was given of any pathology affecting the applicant’s lower limbs and none of the neurologists found anything wrong with the functioning of the lower limbs. In these circumstances it is not open to conclude that any pain experienced by the applicant in his legs from L’hermitte’s syndrome substantially or considerably affected the functioning of his lower limbs.
41. With regard to the respiratory system, the respondent submits that the claim in respect of it is bound to fail because of the paucity of evidence. There has not been any effective rejoinder to that submission. We consider the point must succeed.
Conclusion
42. It follows that the decision under review must be set aside only with respect to the applicant’s claim relating to the upper limbs. Otherwise it must be affirmed.
43. It is common ground that this decision is not required to form any view on the extent to which the applicant’s upper arm condition was contributed to by interventions with his cervical condition occurring following his neck injury in 1966.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon Robert Nicholson, Deputy President and Dr P Staer
Signed: ..(sgd) T Freeman.........
AssociateDate/s of Hearing 24 - 27 November 2008
Date of Decision 26 March 2009
Applicant’s Representative Self-represented with Mrs Y Strawbridge
Counsel for the Respondent Mr C J Clark
Solicitor for the Respondent Mr P Benson
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