Gregoire and Australian Postal Corporation
[2011] AATA 768
•31 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 768
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1078
GENERAL ADMINISTRATIVE DIVISION
)
Re Paul Gregoire Applicant
And
Australian Postal Corporation
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date31 October 2011
PlaceCanberra
Decision The Tribunal sets aside the reviewable decision and in substitution it is decided that:
1. Mr Gregoire has a permanent impairment of ten to 13 per cent; and
2. Comcare is liable to pay compensation to Mr Gregoire under section 24 and 27 of the Safety. Rehabilitation and Compensation Act 1988 (Cth)
.................[sgd].............................
CATCHWORDS
WORKERS’ COMPENSATION – assessment of permanent impairment – whether applicant suffered a permanent impairment – whether current symptoms related to work-related injury – impact of non-work related conditions – degree of impairment – decision set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 27
American Medical Association Guides to the Evaluation of Permanent Impairment (5th edn, 2000, AMA Press)
Comcare v Amorebieta (1996) 66 FCR 83
Jordon v Australian Postal Corporation (2007) 99 ALD 303
Re Stewart and Comcare (2003) AATA 27
Re Williams and Australian Postal Corporation (AAT 12695, 11 March 1998)
REASONS FOR DECISION
31 October 2011 Professor RM Creyke, Senior Member
1. Mr Paul Gregoire has a claim for compensation for permanent impairment for an accepted condition of muscle spasm to lumbar region of the back. Liability for the condition was accepted on 20 February 1997 and liability for aggravation of the condition was accepted on 17 March 1997.
2. The claim for permanent impairment was deferred in a decision of 14 December 2009 on the ground that Mr Gregoire’s condition may not be permanent and hence had not stabilised and his impairment did not reach 10 per cent.
3. That decision was upheld on review on 5 February 2010 for a different reason, namely that Mr Gregoire had not undertaken all reasonable rehabilitation and hence his condition may not have stabilised.
4. Mr Gregoire lodged an application for review by the Tribunal on 31 March 2010.
5. The matter was heard by the Tribunal on 18-19 May 2011. Supplementary evidence was received on 3 June and 1 August 2011. Final submissions were received from both parties on 10 August and 29 August 2011.
History
6. Mr Gregoire was born on 21 May 1956. He was employed by Australia Post from 1985 until 1999, sorting and delivering mail.
7. On 30 December 1996 he suffered an injury to his back. Mr Gregoire was leaving for work when he found his car had a flat tyre. When lifting the spare tyre from the boot he suffered a sudden onset of severe pain in the lower spine.
8. After recovering a little he changed the tyre and proceeded to work. However, after one or two hours he could no longer work and sought the assistance of his doctor. Dr Rob Morton, Mr Gregoire’s treating general practitioner, requested an x-ray and a CT scan, which identified a ‘foraminal disc protrusion on the left at the L4/5 level’ and a ‘posterior disc protrusion, to the left of the mid line at the L5/S1 level’, and impingement of the left S1 nerve root, due to the December incident.
9. Mr Gregoire managed to recover sufficiently to return to work on modified duties by 7 January 1997 and was certified fully fit for work, with some restrictions, by 14 January 1997. The restrictions meant he was limited to postal delivery on a ‘walk beat’, and could no longer use a motor cycle. On 14 February 1997, he reported he had further injured his back while lifting mail boxes at work. He filed an incident report which was received on 5 March 1997.
10. Dr Morton issued a medical certificate on 28 February 1997 stating the Mr Gregoire was 'suffering from muscle spasm in his lumbar spine, secondary to a disc prolapse at L4/5 and L5/S1. These prolapses are most likely the result of an injury, lifting a tyre from his boot on the way to work on 30 December 1996'.
11. Mr Gregoire’s leave applications indicate he took leave for a week from 30 December 1996 to 6 January 1997 following the first incident; and from 24 February 1997 to 28 February 1997, 11 March to 21 April 1997, and 2 May to 5 May 1997, for the second incident. From 23 April 1997 he was again on a graduated return to work for several months. On return to full-time duties he was subject to restrictions including not delivering mail using a motor cycle.
12. A referral letter to Dr Joan Chen, dated 11 June 1998, noted that according to rehabilitation reports, Mr Gregoire ‘continued to experience referred leg pain but this appeared to resolve around August ’97 with a change in medication’. Dr Morton prescribed Epilim for Mr Gregoire in May and increased the dosage in July 1997. Epilim is an anti-convulsant and is used for patients with epilepsy but also for relief of neurological pain.
13. On 17 June 1998, a report from Dr Chen, occupational medical specialist, recorded that Mr Gregoire had returned to work after some weeks and had gradually upgraded to full-time selected duties. Her report of 17 June 1998 recorded Mr Gregoire as saying:
…during the early stages of his condition, he had left buttock and thigh pain, but this responded to Epilim medication after two months. Currently, he no longer experiences any left leg pain, but has the occasional twinge in the left buttock/lateral thigh. He denied having any symptoms in his legs’
14. Dr Chen noted ‘neurological examination of the lower limbs revealed normal strength and sensation. The right ankle jerk was slightly diminished, however, appeared normal with distraction or reinforcement. Her diagnosis was ‘lower lumbar disc protrusion with mild impingement of the left sciatic nerve root, but no actual neurological impairment in the lower limbs’. She concluded: ‘In my opinion, the 30 December 1996 incident probably aggravated an underlying lower lumbar degenerative disc condition’.
15. Dr Bryan Ashman, a consultant orthopaedic surgeon, reported on 28 July 1997 that Mr Gregoire had suffered an ‘acute disc protrusion, possibly at two lumbar intervertebral levels’ but that conservative treatment only was required and in his opinion, ‘there is every chance … he will make a full and complete recovery from his injury’. He advised that Mr Gregoire’s symptoms, which included left leg pain after the second incident, ‘will settle down over a six to twelve month period from now’.
16. Mr Gregoire was made redundant in 1999. Subsequently he obtained work doing pizza deliveries for five to six hours a week, and newspaper deliveries for three hours a day, four days a week. In his report to Dr Nall in October 2008, Mr Gregoire said ‘over the last year he has been off work on many occasions, he cannot remember how many, because of pain in his back’. Since 2010, he no longer does pizza deliveries and he is currently on a part disability support pension.
17. Mr Gregoire’s testimony was that since 1999, he simply experienced a ‘constant aching back’ and he has no days without pain. In his view the condition has slowly become worse. He said since 1996 he could easily put out his back, for example, by twisting, bending, or lifting the wrong way. On these occasions he would experience sudden pain in his back, following which he might have to spend two to five days ‘on the floor’ or doing very little before his back recovered. Mr Gregoire said ‘I just try to be as careful as possible when I am doing things’ and in particular, when vacuuming which he often does on his hands and knees.
18. In 2004, a CT of the lumbar spine showed:
no significant lesion … at L2/3 and L3/4 levels. At L4/5 level the disc is bulging diffusely, slightly more prominent on the left side where there is encroachment on the intervertebral foramen.[1] No free disc fragment is identified at this level. Mild diffuse annulus bulging at L5/S1 disc is noted. There is no significant compression of the thecal sac or S1 nerve root sleeves. There is no generalised bony canal stenosis. No major degenerative changes are demonstrated at the lumbar facet joints. There is no spondylolisthesis.
[1] Intervertebral foramina are the natural openings on either side of the vertebrae, through which the spinal cord passes.
19. Mr Gregoire also described his vascular symptoms which developed five to six years ago. He found he could walk only a limited distance and if he attempted to walk uphill, ‘my whole thigh would just start to ache and I would have to stop walking’. He said he thought at the time it was due to his back. However, Dr Morton, whom he consulted, diagnosed a circulation problem and referred him to Dr Stephen Bradshaw, a vascular surgeon.
20. Dr Bradshaw recorded on 24 March 2005, that Mr Gregoire ‘had left thigh and buttock claudication for the last six months. This is mainly when he walks up hills’. This was due to a left common iliac artery stenosis[2] which was producing left thigh and buttock claudication.[3] Dr Bradshaw noted these symptoms had largely resolved following an angioplasty.
[2] An unnatural narrowing of the common iliac artery, an artery originating at the abdominal aorta, bifurcating in the lumbar region and travelling down the femur. Black’s Medical Dictionary (2010, 42nd ed). Ed H Marcovitch, page 625.
[3] A cramp line pain that occurs in the legs on walking. The usual cause is narrowing or blockage of the arteries in the legs. Black’s Medical Dictionary (2010, 42nd ed). Ed H Marcovitch, page 133.
21. After the angioplasty in 2005 Mr Gregoire said he was fine. However, the condition recurred about ‘a year ago’ and he returned to Dr Bradshaw and had another angioplasty in November 2010. Since that date Mr Gregoire says he no longer has an aching pain in his calf and thigh muscles.
22. In relation to his lumbar condition, Dr Morton suggested surgery but Mr Gregoire is not prepared to face the risks of surgery unless the condition deteriorates considerably. When asked why he had not reported any problems with his back between about 1998 and 2004, he replied that there is nothing Dr Morton or anybody else can do about his back so he just puts up with it. He also said he refused to take pain killers for his back. He will take painkillers for temporary conditions but not for his lumbar spine condition as it is permanent and he is not prepared to be on painkillers permanently.
23. On 29 October 2008, Dr Robert Nall, consultant orthopaedic surgeon, provided a report at the request of the Australian Postal Corporation. Dr Nall’s diagnosis was:
… degenerative change in the lumbar spine which is giving rise to recurrent facet joint pain in association with acute exacerbations of pain. Although there is some evidence of nerve root tension, there are no clinical findings to suggest a significant nerve root compression which may be expected following a chronic disc prolapse.
24. In the context of his vascular condition, Dr Nall reported that in 2005 Mr Gregoire reported ‘pain in the left buttock radiating down his left lower limb with occasional pins and needles’, symptoms that did not ‘entirely disappear’ following the angioplasty in 2005. He also noted ‘examination of the peripheral nervous system with reference to the lower limbs does not demonstrate any abnormality to suggest nerve root compression in the lumbar spine apart from the positive flip test’. The positive flip test, or straight leg raising test from a sitting position, is used to confirm nerve root tension. He noted that a ‘left posterior disc protrusion at L5/S1 … which appeared to be impinging on the left L5 nerve root’ and said that ‘there is some evidence of nerve root tension but no signs to suggest a significant lumbar radiculopathy on the left side’. It was his opinion that 'it is reasonable to presume that the injury of 1996 is responsible for the recurrent episodes of pain that he has had since then'.
25. Dr Nall recommended further investigations following an MRI scan of the lumbar spine ‘to exclude the possibility of nerve root compression causing the symptoms in his left lower limb rather than them being due to vascular problems’ and to enable an assessment ‘of his left buttock and left leg pain on the basis of whether it is vascular or neurogenic’. He also suggested that a 'caudal block would also help and if there is complete relief of his pain with this procedure [the cause of Mr Gregorie’s pain] is likely to be neurogenic'. Mr Gregoire has not undergone a caudal block.
26. The MRI report on 27 February 2009 recorded:
Disc dehydration in the lower three lumbar discs, mild disc bulging and facet joint prominence at L3-4, moderate spinal canal stenosis[4] at L4-5 with bilateral exit foraminal encroachment, left exit foraminal stenosis at L5-S1 catching L5 nerve root and left lateral recess stenosis slightly impinging the descending S1 nerve root. Disc bulging has been shown on 17.11.04’s CT lumbar spine’.
[4] Narrowing of the spinal canal so that the nerves become squashed together. Black’s Medical Dictionary (2010, 42nd ed). Ed H Marcovitch, page 617.
27. Specifically the report recorded:
‘L4-5: the cauda equina is slightly encroached, moderate central spinal canal stenosis … is related to disc bulging, facet joint prominence and thickening of the ligamentum flavum[5] which measures up to 5mm. The exiting L4 nerve roots are slightly encroached, foraminal stenosis related to disc bulging and facet joint prominence.
L5/S1: anterior or thecal flattening is mild from endplate disc margin hypertrophy, central canal stenosis not significant. The left exiting L5 nerve root is compressed in the narrowed foramen, the right abutting the disc and mild posterolateral vertebral osteophytosis. The left descending S1 nerve root is slightly encroached from anterior compression from disc bulge and posteriorly from the facet joints.
[5] Ligaments connecting the arches of each vertebrae. Medicine and Surgery for Lawyers (1996. 2nd ed), A Buzzard, E Hughes, G Hughes, J Wells, page 468.
28. Mr Gregoire completed a permanent impairment claim form dated 25 June 2009. Dr Morton, completing his elements of the form, referred to ‘pain radiating to the left leg’ in response to the question about impairment as well as Mr Gregoire being ‘unable to sit, stand or walk for any length of time without significant pain in his lower back’. As he concluded ‘This makes everyday activities very difficult’. In response to the question about ‘prognosis of current condition’, Dr Morton referred to ‘recurrent low back pain due to left L4/5 disc prolapse, subsequent facet joint dysfunction’. In his opinion Mr Gregoire's condition would deteriorate over time.
29. On 11 January 2010, Dr Morton, provided a letter to Mr Gregoire saying that in his opinion Mr Gregoire has a 'disc prolapse at L5/S1 with bilateral (left more than right) nerve root irritation. This condition is permanent'.
Principal medical evidence
Dr McGill
30. Dr Neil McGill, consultant rheumatologist, provided a report for the Australian Postal Corporation, dated 29 July 2010. While noting Mr Gregoire was a ‘reluctant historian’, he recorded in Mr Gregoire’s history:
[Mr Gregoire] stated that about five months ago he developed pain radiating from the left buttock down the posterior thigh to the foot. He thought that he had had not previously experienced any radiation into the lower limbs. His recollection was that until that time, his low back pain had moved around the low back region but had not radiated into the lower limbs nor into the upper back. He thought there was no change in his activities and no event that precipitated the onset of left lower limb symptoms.
31. Under ‘Current Symptoms’ he recorded:
He continues to experience pain in the low back, sometimes radiating into the high lumbar region. He also has pain radiating from the left buttock down the posterior aspect of the thigh to the foot. That pain is substantially better than it was previously but is still present all of the time. He stated that if he walks for 200m then he is forced to stop because of low back and left lower limb symptoms. The restriction in terms of his walking capacity was only mentioned when I specifically asked. He could not recall experiencing paraesthesia or numbness. He has had no right lower limb symptom. …
He reported that his current left lower limb symptoms are different from the symptoms he experienced prior to the balloon dilatation in that the pain radiates all the way from the buttock down the limb and is thus considerably more extensive.
32. Under ‘Investigations’, after referring to the MRI dated 24 February 2009, Dr McGill noted ‘Thus the MRI demonstrated diffuse degenerative change’. After referring to the clinical notes provided by Dr Morton he also noted: ‘There was no entry in regard to [Mr Gregoire’s] low back pain between 1998 and 26 August 2008’.
33. In his summary, Dr McGill concluded:
His imaging studies have demonstrated degenerative change in the lumbar spine. … I think it is appropriate to conclude that the relatively minor events that occurred (lifting a tyre out of a boot, reaching for a box of letters) influenced his back symptoms at that time. I think it is unlikely … that those events substantially changed the structure of his spine and I think it is probable that the current state of his spine is the same or similar to what would have been the case had the events in December 1996 and February 1997 not occurred’ …
I think there remains real doubt as to whether most of his current left lower limb symptoms are vascular or related to his low back. If he has recurrent common iliac stenosis on the left then that could easily account for pain in the buttock, radiating further down the limb.
34. He repeated these conclusions in a supplementary report of 10 February 2011. In that report, for the purpose of assessment of degree of permanent impairment, he said:
I think his left lower limb symptoms have been due to vascular claudication due to left common iliac artery stenosis. … Putting aside the cause of his low back degenerative change he has DRE [Diagnosis-Related Estimates] Category 1 in accordance with [Comcare Guide] table 9.17 which equates to zero whole person impairment. He does not have radiculopathy and, taking into consideration the documentation reviewed, including the reports referred to in my initial report, I do not think that he had ‘prior clinically significant radiculopathy’.
35. He also noted a letter from Dr Bradshaw dated 5 October 2010 which ‘made no mention … of any possible non-vascular contribution to [Mr Gregoire’s] lower limb symptoms’. He concluded ‘the effect of the incidents in December 1996 and February 1997 has long since ceased, there is no current work related problem and thus no impairment’.
Dr Griffith
36. On 16 May 2010, Dr Graeme Griffith, consultant surgeon, in the summary of his report for the applicant, diagnosed:
… degenerative changes in [Mr Gregoire’s] lumbar spine prior to the index injury, although these were minimal and essentially asymptomatic. He also suffered from precocious vascular disease, though this too was silent at the time of the index injury.
37. Dr Griffith reported as a result of the December 1996 injury, Mr Gregoire suffered ‘Acute lumbar disc protrusion at L4-5 and L5-S1 levels and injury to the left L5 nerve root (? S1 also)’. His report also noted that ‘His true claudication and arterial disease is unrelated to his employment and requires careful supervision and prophylactic anti-platelet therapy’.
38. Dr Griffith listed as sequalae:
- Persistent severe low back pain;
- Persistent sciatica – ongoing;
- Progressive degenerative disease (with severe spinal stenosis on the basis of ligamentum flavum hypertrophy, facet joint osteophytes, disc protrusion and least contributory, constitutionally small spinal canal);
- Pseudo-claudication – ongoing.
- In 2006, ie ten years after the index injury, he developed a further pain the lower limbs which was in fact a true claudication, the result of left femoral artery obstruction/stenosis. This has been treated with balloon angioplasty, many months after diagnosis, without stenting as far as I am aware, and has been very successful in dealing with this element of his symptoms, which is unrelated to any traumatic episodes. …
- Persistent lumbar myalgia (regional muscle spasm).
- Chronic adjustment disorder with elements of depression and anxiety – persistent.
39. His prognosis for the disc lesions was for ‘ongoing symptoms, which will remain intrusive to the extent outlined until such time as it is effectively treated symptomatically’. He assessed whole person impairment under the Comcare Guide to the Assessment of Degree of Permanent Impairment (Comcare Guide) Table 9.7 as 20 per cent, and under Table 9.17, as 13 per cent.
40. In a supplementary report of 6 October 2010, in response to Dr McGill’s report, Dr Griffith said he was not surprised at the difference of opinion between them given the different histories each had received. He said following ‘specific inquiry’ that Mr Gregoire ‘was never free of pain, and was easily able to differentiate between spinal and vascular pain patterns’. In conclusion Dr Griffith said: ‘I remain of the opinion that [Mr Gregoire’s] problem was currently due to his spinal problem and lower lumbar disc problem, and not recurrent vascular problems’.
41. At the hearing, it became apparent that Dr Griffith had not seen all the earlier medical files, particularly concerning Mr Gregoire’s vascular problems, and he acknowledged that this affected his diagnosis and assessment. For that reason, the matter was adjourned at the end of the hearing to permit him to provide a supplementary report, which he did on 1 June 2011. Dr McGill provided comment in another supplementary report on 27 July 2011.
42. In this further report, Dr Griffith confirmed that Mr Gregoire suffered from two distinct conditions; one vascular and not work-related; the other neurological and work-related. In his view, however, both conditions were ‘producing symptoms referable to the left lower limb’. He adhered to his view, based in part on the MRI of 24 February 2009, that the predominant cause of Mr Gregoire’s current symptoms was the L4/5 and L5/S1 protrusive disc pathology due to the injury in 1996 and that this was the principal element in his current symptoms. He acknowledged that the gradual progression of Mr Gregoire’s lumbar spinal spondylosis made some contribution, but said it was ‘not the primary cause’ of his problems.
Legislation
43. Section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) provides for payment of compensation for permanent impairment. Section 27 sets out the pre-requisites for compensation for non-economic loss. Relevant definitions in the Act include:
4 Interpretation
4(1) impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.permanent means likely to continue indefinitely
Issues
44. At the hearing it was conceded that Mr Gregoire’s condition had stabilised and he had undertaken all reasonable rehabilitative action. The remaining issues are:
· Whether Mr Gregoire has suffered a whole person impairment due to his accepted injury
· The degree of permanent impairment of the employee resulting from the injury in accordance with the provisions of the appropriate guide
· Whether Mr Gregoire’s impairment meets the criteria for compensation pursuant to sections 24 and 27 of the Act.
Consideration
45. It was common ground that the permanent impairment assessment is to be undertaken in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edn, 2000, AMA Press) (AMA Guides) Table 15-3
46. The texts of the relevant columns in Table 15-3 are set out below:
DRE Lumbar Category I
0% Impairment of the Whole PersonDRE Lumbar Category II
5-8% Impairment of the Whole PersonDRE Lumbar Category III
10-13% Impairment of the Whole PersonNo significant clinical findings, no observed muscle guarding or spasm, no documentable neurologic impairment no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures Clinical history and examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy
or
Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, loss of relevant reflex(es), loss of muscle strength of measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location; impairment may be verified by electrodiagnostic findings
or
Individual had a clinically significant radiculopathy and has an imaging study that demonstrates a herniated disk at the level and on the side that would be expected based on the previous radiculopathy, but no longer has the radiculopathy following conservative treatment
or
History of a herniated disk at the level and on the side that would be expected from objective clinical findings, associated with radiculopathy or individuals who has surgery for radiculopathy but are not asymptomatic
or
Fractures: (1) less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation (not developmental spondylosis) that has healed without alteration of motion segment integrity; (3) a spinous or traverse process fracture with displacement without a vertebral body fracture which does not disrupt the spinal canal Fractures: (1) 25% to 50% compression of one vertebral body; (2) posterior element fracture with displacement disrupting the spinal canal; in both cases, the fracture has healed without alteration of structural integrity 47. The Australian Postal Corporation contends there is no entitlement to permanent impairment compensation on two grounds: that the effects of the work-related injuries in December 1996 and February 1997 have long since ceased; and that the proper assessment of Mr Gregoire’s impairment under the AMA Guides Table 15-3 is DRE I, that is, zero per cent.
Whether Mr Gregoire’s symptoms are related to his work-related condition
48. Mr Gregoire has suffered two relevant conditions: first, a lower back condition namely, a posterolateral disc protrusion at the L4/5 level, and a posterior disc protrusion at the L5/S1 level together with impingement of the left S1 nerve root; and second, a vascular problem in the left common iliac artery which occurred in 2005 and again in 2010 producing left thigh and buttock claudication. The first condition was either caused or aggravated by an incident related to work in late 1996, and exacerbated at work in February 1997; the second was not work-related. There was also evidence that Mr Gregoire suffered degenerative spinal change.
49. Mr Gregoire claims that presently he continues to suffer low back pain and pain in his left buttock and leg. His claim raises the specific issue of whether Mr Gregoire can distinguish the pain associated with his vascular condition from the symptoms due to the disc-related damage. There was also another specific issue as to whether an assessment could be made of the degree of impairment due to the disc-related pathology as compared with the degenerative spinal condition.
Cause of symptoms in low back and leg
50. The first issue is whether Mr Gregoire’s disc-related injuries has continued to cause him pain in his low back and leg since the incidents in 1996/1997. For the purposes of this discussion, the consideration will divide the history into two periods: 1996-2005; 2005 to present.
1996-2005
51. Mr Gregoire says he has had constant low back pain. At irregular intervals, often monthly or bi-monthly, following coughing and sneezing, bending or attempting to lift Mr Gregoire also suffers a sharp shooting pain which he said may take between two to five days to settle down. In a letter to the Australian Postal Corporation, dated 25 February 1997, Mr Gregoire referred to ‘the occasional nerve pain down my upper, back left leg’. An incident report completed by Mr Gregoire, dated 28 February 1997, referred to symptoms in the ‘back (lower) and upper left back leg’.
52. Lower back pain can result in referred pain to the thigh and leg since each of the spinal nerves provides sensation to a predictable area of skin (dermatomal sensation). There is overlap between the dermatomal zones. Nonetheless, in combination these spinal areas relate to the lower limbs, and to the foot.
53. Dr McGill noted in his report of 29 July 2010 that Mr Gregoire had not complained to Dr Morton about his low back pain between 1998 and 26 August 2008.
54. The Australian Postal Corporation asserts that any reported leg symptoms are not in the nature of radiculopathy but rather, somatic pain that has otherwise been caused by the vascular disease/claudication. The expression ‘somatic pain’ or musculoskeletal pain refers to pain relating to the skin, joints and muscles.
55. Counsel for Mr Gregoire submitted:
… the intervening vascular episodes which have been effectively treated do not alter the fact that the Applicant first complained of left lower limb symptoms shortly after the work place injury in December 1996 and, that having regard to the general practitioner’s notes, such complaints have continued intermittently since the injury date.
To the extent that left leg symptoms were continuing when the Applicant saw Dr McGill in February 2011 shortly after the further vascular surgery, and there was no history of such symptoms prior to the workplace injury, the continuing left lower limb symptoms are unexplained by the claudication diagnosis. They are also unexplained by the opinion of Dr McGill.
56. There is medical and related evidence of the continuation of symptoms of pain in Mr Gregoire’s lower back, left buttock and leg. The CT scan in 1997 identified disc protrusion on the left at the L4/5 level, and a posterior disc protrusion at the L5/S1 level, and impingement of the left S1 nerve root, conditions which are capable of leading to pain. Dr Ashman in his report of 28 July 1997 notes that after the aggravation of his back condition in February 1997, Mr Gregoire started to develop left leg pain. However, he expressed the opinion that the symptoms would resolve in six to 12 months.
57. Medical certificates from Dr Morton between 4 August 1997 and 21 November 1997 noted ‘sciatic pain left leg’. Medical certificates from 19 February 1998 to 23 October 1998 only note ‘lumbar disc prolapse’.
58. The physiotherapist, Ms Jenni Wills, to whom Mr Gregoire was referred, noted on 19 August 1997 and again on 28 January 1998 that Mr Gregoire’s ‘major reported symptoms’ were ‘acute pain back and left leg’. On 4 May 1998, she referred under this heading to ‘constant ache/pain lsp [lower spine] – left leg’.
59. In the referral letter to Dr Chen in early 1998, the rehabilitation reports noted that Mr Gregoire was experiencing referred leg pain but the letter noted ‘this appeared to resolve around August 1997 with a change in medication’. Dr Chen, in her report of 17 June 1998 recorded Mr Gregoire as saying ‘during the early stages of his condition, he had left buttock and thigh pain, but this responded to Epilim medication after two months’. The report continued: ‘Currently, he no longer experiences any left leg pain, but has the occasional twinge in the left buttock/lateral thigh. He denied having any symptoms in his leg’. Although Dr Chen found ‘no actual neurological impairment in the lower limbs’, she had noted ‘mild impingement of the left sciatic nerve root’.
60. The Tribunal notes that Dr Morton prescribed Epilim tablets in May and July 1997. It is likely that Epilim was the changed medication. From December 1996 when the first incident occurred until May 1997, Dr Morton had been providing Mr Gregoire with prescriptions for medications for pain relief, namely, Voltaren Rapid, Panadeine Forte and Voltaren.
61. After the first incident, Mr Gregoire took a week of leave, and took some eight weeks off work after the second. Thereafter he made slow progress in his return to work program, only achieving full-time work some months later. Even then he was no longer able to deliver mail by motor cycle and was confined to a ‘walk beat’, indicating a continuing disability.
62. The medical, rehabilitation and physiotherapy reports in 1997 and 1998 indicated Mr Gregoire continued to report low back pain and, after the second incident, leg pain.[6] Although Dr Ashman considered Mr Gregoire was likely to make a full recovery in six to twelve months, that is, by mid-1998, Mr Gregoire had not done so, as the conditions on his return to work remained. Although Dr Chen had reported no neurological impairment in the lower limbs and recorded Mr Gregoire as saying he no longer experienced leg pain by June 1998, that did not rule out pain in his lower back and he was also experiencing occasional pain or a ‘twinge’ in his lateral thigh and buttocks. Dr Ashman had diagnosed ‘acute disc protrusion’ and had noted some impingement of the sciatic nerve root, and slight diminution of the right ankle jerk indicating, damage to the spine and some neurological impact. On the basis of this evidence the Tribunal concludes that it is probable that Mr Gregoire continued to suffer pain in his lower back and left buttock and leg until at least the end of 1998.
[6] Reports of Doctors Morton, Ashman, Chen.
63. Mr Gregoire ceased working for the Australian Postal Corporation in 1999. The evidence suggests that impairment from his back buttock and leg conditions were not particularly disabling at this time. The Tribunal notes from Dr Morton’s clinical notes that Mr Gregoire had injured himself go-karting in late February/early March 2001, and skiing in late August 2001. In the first instance he did not report the condition to Dr Morton for a fortnight and in the second until three weeks after the incidents, suggesting minor injuries. Nor is there evidence about how frequent were such activities. Nonetheless, the fact that he was engaging in both sports suggests that the impairment from his low back and leg conditions was minimal at this time. At the hearing Mr Gregoire said he had not been go-karting or skiing for six to seven years and could not contemplate doing so today because of his residual pain. The Tribunal accepts, based on the other evidence detailed in these reasons, that this is so.
64. By 2004, however, a further CT scan had been requested and this showed diffuse bulging of the disc at L4/5, particularly on the left side, although there was ‘no significant compression of the thecal sac or S1 nerve root sleeves’, indicating spinal problems continued. Although Dr Stephen Bradshaw, in his clinical notes for 24 March 2005, reported ‘minimal residual complaints’ from the injury in 1997, and the medical evidence of referred pain experienced by Mr Gregoire in 2004-2005 appeared to be mainly vascular, Dr Bradshaw’s clinical notes in March 2005 do refer to a ‘left S1 nerve root pain’ suggesting the degeneration of his spine and that the initial cause of his pain continued.
65. There is also evidence from the clinical notes that Dr Morton was prescribing painkillers such as Panadeine Forte, Voltaren Rapid, Voltaren and Panamax in this early period after the 1996 injury. At the hearing Mr Gregoire was adamant that he did not take painkillers for his back except in the early period, because he did not want to be on painkillers permanently and his back condition was permanent. The clinical notes indicate that Dr Morton’s prescription of these medications was principally for temporary problems other than pain in the back or leg. Nonetheless, Mr Gregoire said at the hearing that he presently uses Panamax and Lyrica for his back and leg problems and, in his statement he said he would also take over the counter painkillers for his back. So it is possible he was using some of these painkillers on an infrequent basis during this period also.
66. Apart from use of painkillers, another explanation for Mr Gregoire’s failure to complain about his lower back, buttock and leg conditions at this time, was the conservative management regime he adopted. Mr Gregoire’s testimony was that he was reluctant to have an operation for his back, given the limited success rate of such surgery. Accordingly he rejected a suggestion by Dr Morton following the injuries in 1996 and 1997, that he undergo surgery.
67. Dr Morton accepted Mr Gregoire’s decision as reflected in his clinical notes. In December 1996 he recommended ‘Voltaren and panadeine, rest and then exercise’ for Mr Gregoire’s back condition, and referred him to physiotherapy in 1997 and 1998. In 2001 Dr Morton’s treatment for Mr Gregoire’s cervical spine pain was physiotherapy, ‘panadeine, heat, massage’, and in October 2001, for shoulder pain, ‘exercises, physiotherapy’. In September 2007, he recommended a ‘patient education leaflet – exercises for your lower back’ and in August 2008, the management he suggested for facet joint dysfunction was ‘panadol, voltaren, and physio’. Dr Ashman also recommended conservative treatment in 1997, and the WorkCover certificates too in 1997 and 1998 recommended exercises as treatment. In other words, from the time of his initial injury, there has been a focus on conservative treatments for the conditions Mr Gregoire suffered.
68. Mr Gregoire’s testimony was that he controlled the pain in his back and leg by exercise, changing his position, or lying down, by physiotherapy and at one point in 1997 by use of a lumber-sacral brace. He said that as he had been told by Dr Morton that he could do nothing for his back, and since surgery had been ruled out unless his back condition became much worse, he did not complain about his back or leg. That explained why there was no reference in the clinical notes to his back condition from 1998 until August 2008. The Tribunal found that Mr Gregoire was an honest witness and accepts that the reasons Mr Gregoire did not complain to Dr Morton about his continuing back and leg pain were his reluctance to undergo surgical treatment options and his alternative pain management practices, coupled with the conservative approaches recommended by his medical and other advisers.
69. The Tribunal finds that the initial marked symptoms of discomfort in his low back and leg experienced by Mr Gregoire were partly ameliorated following the prescription of Epilim in May and July 1997, physiotherapy, and self-management.
70. Nonetheless, the evidence of Dr Ashman and Dr Chen, Dr Morton’s testimony of continuing and intermittent problems every couple of months since 1997, Mr Gregoire’s evidence of continuous low back pain with intermittent more severe pain, the CT scans in 1997 referring to disc protrusions at L4/5 and L5/S1, and impingement of the left S1 nerve root, and the CT scans in 2004 which recorded ‘diffuse bulging’ of the disc at L4/5 encroachment on the intervertebral foramen’, as well as the histories provided from 2008 to Doctors Nall, McGill and Griffith, support the fact that the effects of the injuries in 1996 and 1997 have continued.
71. The Tribunal does not accept the submission that the pain Mr Gregoire experienced was solely due to somatic, that is, in this case, vascular pain. The medical evidence does not support such an assertion. On balance, the Tribunal finds that Mr Gregoire continued to experience some symptoms of back pain in the period from 1999 to 2005 apart from the vascular symptoms which emerged in 2004-5.
2005 − present
72. There is also evidence that his low back, buttock and leg pain continued after 2005.
·Dr Nall, an orthopaedic surgeon, recorded a history in 29 October 2008 including ‘left posterior disc protraction at L5/S1 which appeared to be impinging on the left L5 nerve root’, causing his present pain symptoms.
·Dr Morton’s evidence has supported the continuation of Mr Gregoire’s pain:
oIn a letter to the Australian Postal Corporation on 26 June 2008 he certified that Mr Gregoire had recurrent low back pain for the previous 11 years, consistent with a continuation of his injury in 1997, including episodes of more extreme pain every two or three months.
oHis clinical notes in August 2008 refer to an ‘urgent presentation’ by Mr Gregoire for ‘further pain in his back … low back pain’ continuing over two days, the pain being local, with no radiation, of a ‘sharp, shooting’ nature.
oHe repeated this view in the permanent impairment claim form he completed on 16 June 2009 noting ‘pain radiating to the left leg’ and that Mr Gregoire was ‘unable to sit, stand or walk for any length of time without significant pain in his lower back’.
oHis referral letter to Dr Bradshaw in February 2005 listed the disc prolapse (May 1997), and in August 2010, he referred to ‘recurrent left leg claudication symptoms, on top of a left S1 nerve root pain’ (emphasis added). In the 2010 referral letter he noted active conditions of ‘facet joint dysfunction (26 August 2008)’, and ‘radiculopathy – lumbar (Left) Left S1 (8 June 2010)’. The failure of Mr Gregoire to consult him about his neurological conditions probably explains the gaps in these records.
·The MRI of 27 February 2009 recorded ‘disc dehydration in the lower three lumbar discs, mild disc bulging and facet joint prominence at L3-4, moderate spinal canal stenosis at L4-5 catching L5 nerve root and left lateral recess stenosis slightly impinging the descending S1 nerve root’.
·Dr Griffith’s final June 2011 report, following his examination in full of the documentary medical evidence and based in part on the MRI in 2009, was that the protrusive disc pathology from 1996 and 1997 was the predominant cause of Mr Gregoire’s symptoms.
73. Counsel for the Australian Postal Corporation noted that Mr Gregoire at the hearing had denied he had leg pain. At times Mr Gregoire’s evidence was inconsistent. He said at the hearing that he had no leg pain, however, he soon after corrected himself at one point, as noted in counsel’s submission,[7] and when asked about his current medications said:
[7] Transcript, day 1, p 16
…no hang on. That was my leg. That was for me leg he gave me that. And then when I went and got treated for my leg a while back, they gave me some – some other tablets. I can’t think of what they were called. I take Lyrica for this, which is a nerve tablet that controls the nerve running down my leg.
74. Dr McGill’s report of July 2010, was that he considered there was ‘real doubt’ as to whether Mr Gregoire’s lower limb symptoms were vascular or related to his low back and that it was probable that he would have experienced these symptoms regardless of the events of 1996-97. The Tribunal notes, however, that Dr McGill admitted the history he took could be incomplete. In addition, Dr McGill’s only explanation for Mr Gregoire’s continuing symptoms was his degenerative spinal condition (dealt with later in these reasons) or his vascular condition, the pain from which was largely alleviated by the angioplasty procedures in 2005 and 2010. That leaves unexplained the residual pain suffered by Mr Gregoire.
75. The Tribunal accepts on the evidence that apart from the vascular pain he experienced in 2004-05 and again in 2009-10, largely ameliorated by angioplasty, Mr Gregoire continued to suffer other pain in his back and left lower limb. On the evidence, he manages his pain by rest, change of position and exercise. He is stoical about this condition, having rejected surgery and knowing that little can be done to alleviate his pain by medical means. This finding is supported by the history of referred pain in the medical records and the strategies Mr Gregoire has developed under the guidance of Dr Morton to manage his conditions. Accordingly, Mr Gregoire continued to suffer pain in his low back and left leg from 1996/1997 to 2008 and beyond which was neurological in origin.
Ability to distinguish source of pain
76. There is conflicting evidence about the nature of the leg pain Mr Gregoire suffers and whether he is able to distinguish between the symptoms of his vascular-generated pain and pain from his spinal conditions. He claims to be able to do so. His claim is supported by Dr Griffith but doubted by Dr McGill, on the basis that the description provided by Mr Gregoire was quite similar to that recorded by Dr Bradshaw in 2005.
77. Mr Gregoire said his disc-related pain was a constant ache in his back at a low level with intermittent sharp shooting pains when he puts out his back. As he said in his statement ‘My lower back aches constantly with shooting pains in my buttocks and the back of my leg down to the foot’.
78. He described his vascular pain as an ache in his thigh following prolonged walking, especially if carrying a load or going uphill. When he saw Dr McGill in 2010 he complained about pain over his buttocks and thigh. However, following the angioplasty operations in 2005 and 2010 he said the result was ‘Good leg, fine leg, normal, good pulse in my foot’ and that he no longer has an ache in his buttock or thigh following such activities. Nonetheless, he said he still has a constant ache in his back and the nerve pain that runs down from the back of his leg. As he said ‘it is a sharper pain than what the other one used to be’.
79. Dr Griffith said in his report of 16 May 2010 that Mr Gregoire
… is able to clearly differentiate between the pain of his intermittent claudication due to the vascular insufficiency from which he formerly suffered prior to his angioplasty … and the referred pain from his back, which he states has a different distribution and quite different character. He describes the pain in his leg as shooting in nature, not the aching discomfort of claudication confined to the distal musculature of the calf and progressing prior to the angioplasty to a level which made him worse, following which it would abate after some minutes. It involves the buttock, the left lower limb in an S1 L5 distribution, principally the latter.
80. Dr Griffith did not resile from this view in his reports prior to, during or after the hearing. For example, in the report of 1 June 2011 he said although both conditions produced ‘symptoms referable to the left lower limb’, Mr Gregoire, ‘has noted changes in his symptoms’. In particular Mr Gregoire had told him ‘slopes make no difference to the symptoms of which he is currently suffering’ and he can walk further than previously. That implies that Mr Gregoire can differentiate between the symptomatology of the two conditions by referring to their effects on his ability to function.
81. The Tribunal is aware that even expert clinicians may have difficulty differentiating between claudicant and other types of pain. That was indicated by the recommendation of Dr Nall in his 2008 report that there be further investigations to determine whether ‘his left buttock and left leg pain’ is vascular or neurogenic. In this case the comment adds force to the argument that Mr Gregoire would not be able to distinguish the sharp shooting pain due to claudication from the similar pain he claimed still to experience, as the descriptions could apply either to vascular or neurogenic pain. Nonetheless, the Tribunal notes that he was capable of recognising the difference in effect of the different forms of pain.
82. Despite the acknowledged difficulty, on the evidence the Tribunal is satisfied that Mr Gregoire is able to distinguish the nature of the pain he experiences and its causes. Not only does he describe different symptoms of the two sources of pain, but it was only the novelty of the pain he experienced walking and in particular going uphill that led him to consult Dr Morton about his vascular pain, whereas some time in 1998 he ceased consulting him about his neurological symptoms. The most telling feature of the history, however, is that Mr Gregoire continues to have symptoms of pain in his lower back, buttock and leg despite the alleviation of symptoms he experienced following the angioplasties for his vascular condition. Accordingly, the Tribunal is satisfied that Mr Gregoire is able to tell the difference between his two conditions and that he continues to suffer pain in regions of his back and lower limbs which correlate with the sites of his lower lumbar region injured in 1996 and 1997.
Whether pain in back and leg is due to degenerative change to Mr Gregoire’s back rather than effects of work-related injuries
83. There is evidence that Mr Gregoire had an underlying degenerative lower lumbar disc condition of slow progression. The 1987 X-ray report noted ‘There is a very slight narrowing of the C5-6 disc space. No other abnormality can be seen’. The CT scan in February 1997 did not report any underlying condition. However, Dr Chen concluded that ‘The 30 December 1996 incident probably aggravated an underlying lower lumbar degenerative disc condition’. Her report does not make clear what was the basis for this opinion.
84. The slow progression of the degenerative condition is supported by the fact that the CT scan in 2004 recorded ‘No major degenerative changes are demonstrated at the lumbar facet joints’ and that ‘There is no spondylolisthesis’. By October 2008, however, Dr Nall recorded acute exacerbations of pain and ‘degenerative change in the lumbar spine’ but that, on the balance of probabilities, it was the injuries to Mr Gregoire’s back in 1996 and 1997 that were the most probable initiating cause. The MRI report of 27 February 2009 refers to disc dehydration and multiple forms of stenosis, indicating a progressively worsening condition, in the same region as the areas of his spine damaged in 1996-97.
85. In his initial report Dr Griffith accepted that Mr Gregoire had ‘degenerative changes in his lumbar spine’ prior to the work-related injuries. He listed facet joint problems and ligamentum flavum hypertrophy as symptoms of a degenerative condition. However, he said the degenerative changes ‘were minimal and essentially asymptomatic’. In his 27 July 2011 report he again acknowledged that the progression of Mr Gregoire’s lumbar spondylosis made some contribution, but said it was ‘not the primary cause’ of his problems. At the hearing he conceded under cross-examination that the constitutional condition may at most be contributing some 20 to 25 per cent of his lumbar condition.
86. By contrast in July 2010 Dr McGill said of the incidents in 1996 and 1997 that ‘it is unlikely … that those events substantially changed the structure of [Mr Gregoire’s] spine’. Dr McGill’s only explanation for Mr Gregoire’s continuing symptoms was his degenerative spinal condition, or his vascular condition the pain from which was largely alleviated.
87. Counsel for the Australian Postal Corporation also said the radiology did nothing to support the conclusion that the protrusions are inconsistent with degenerative change or are consistent only with him having such protrusion by reason of the injuries. The arguments about the radiology fail to explain how the 1987 X-ray noted only a slight narrowing of the spinal disc, while the 1997 X-ray showed disc protrusion at L4/5 and L5/S1 and encroachment or impingement referred to by Dr Ashman as ‘acute disc protrusion’.
88. Dr McGill’s discounting of the impact of the incidents of 1996 and 1997 as ‘relatively minor’ also fails to explain how a condition which was, on the evidence, asymptomatic prior to 1996, could have produced quite ‘acute’ and immediate disc lesions following the events in 1996 and particularly 1997,[8] albeit that the subsequent deterioration of his spine occurred slowly over time.
[8] See T12, 15, 45, 50, 54, 58, 64, 84, 87, 89.
89. Dr McGill also failed to explain what event triggered the change from an asymptomatic to a symptomatic condition, what caused that condition largely to resolve, and how a slowly degenerating condition would have had the sudden impact on Mr Gregoire’s lifestyle such that for the last seven or more years he has been unable to undertake most of the surfing, climbing, skiing and go-karting he formerly enjoyed. Nor did he attempt to allocate a degree of contribution of the constitutional spondylosis.
90. In the absence of a satisfactory alternative explanation for the degeneration of Mr Gregoire’s spine, the Tribunal prefers the views of Doctors Nall, Bradshaw, Chen, Morton, Ashman and Griffith and the evidence from X-ray, CT and MRI reports which record a degenerative condition of the spine only after the 1996-97 injuries. Significantly, the areas of the spine affected are those involved in the work-related injuries. The Tribunal is satisfied that it is more probable than not that it was those injuries, rather than any constitutional spondylosis, that explain the principal source of the impairments from which Mr Gregoire suffers. All those on whose evidence the Tribunal has relied, except Dr Morton, are experts in the area of either vascular, rheumatology or orthopaedic conditions. The particular knowledge of the patient possessed by Dr Morton, given his lengthy and continuous relationship with Mr Gregoire and his family over more than 20 years, also give his views peculiar weight. The Tribunal accordingly accepts on the medical evidence and Mr Gregoire’s testimony that he suffered an injury to his lower back which had progressively deteriorated and which is the main cause of his present disabling conditions.
Assessment of permanent impairment
91. Permanent impairment compensation is to be assessed as though the whole of the impairment in respect of the degenerative spinal condition was attributable to the workplace incident absent evidence to the contrary. The expression ‘resulting from the injury’ in section 24(5) means, as discussed by Jenkinson J in Comcare v Amorebieta:
…in contemplation of law the degree of impairment which has resulted from that aggravation of the disease, and in contemplation of law the degree of impairment to which the aggravation brings the respondent’s spine is caused by - ‘results from’ – that aggravation, whatever the lesser degree of impairment was which preceded that aggravation, and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment. [9]
[9] Comcare v Amorebieta (1996) 66 FCR 83 at 96.
92. Although the breadth of that statement has been qualified in subsequent cases the qualification only arises in cases in which there is clear medical evidence apportioning the contribution from non work-related causes.[10] Further, the Federal Court in Jordan v Australian Postal Corporation considered that if it is not possible to isolate the effects of the work-related injury from the effects of the underlying condition the assessment should be made by reference to the totality of the effects.[11]
[10] Re Williams and Australian Postal Corporation (AAT 12695, 11 March 1998); Re Stewart and Comcare (2003) AATA 27.
[11] Jordan v Australian Postal Corporation (2007) 99 ALD 303 at 306-7.
93. Counsel for the Australian Postal Corporation attempted to distinguish Amorebieta on the basis that it related to ‘the contribution of a pre-existing condition, not … the evolution of any such condition post-injury’ as in this case. The principle, however, has been applied in cases akin to Mr Gregoire’s as the later cases such as Jordan indicate. In any event, the CT scan of 1987 indicating some early disc degeneration predates the incidents of 1996 and 1997 and would bring this matter squarely within the facts as well as the principles in Amorebieta.
94. The medical evidence in this case does not clearly quantify the contribution of the constitutional degenerative spinal condition, as opposed to the degeneration following the injuries to his spine in 1996-97. At most Dr Griffith conceded in cross-examination that the contribution was between 20 to 25 per cent. No other medical evidence of contribution was provided. In Mr Gregoire’s case, as in Amorebieta, his spinal condition was, on the medical evidence, asymptomatic prior to the injury in 1996 and its aggravation in 1997. It is conceded that Mr Gregoire’s spinal condition then became symptomatic and has slowly degenerated.
95. The Tribunal does not consider that Dr Griffith’s concession under cross-examination was sufficiently considered, nor was it corroborated by others so as to amount to ‘clear’ evidence of contribution. Accordingly, in the absence of sufficiently ‘clear medical evidence’ indicating the degree of impairment which can be attributed to the degenerative back condition, the Tribunal finds that his impairment was wholly attributable to work-related causes.
Degree of impairment
96. The final issue is what is the degree of impairment Mr Gregoire suffers under Table 15-3 of the AMA Guides. ‘Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’. The relevant impairment in the case of Mr Gregoire is the damage or malfunction of his lower back and his left leg. The Tribunal notes that pain radiating down the leg to the small toe is the general pattern of the S1 dermatome. Equally the dermatome zones for the L4/5 and L5/S1 discs are the surfaces of the lower limbs and the feet.
97. Dr McGill allocated zero per cent permanent impairment; Dr Griffith assessed his impairment as DRE III, that is, 10 to 13 per cent. Dr Morton declined to allocate an assessment as he had not been trained in the use of the Comcare or other, Guides.
98. Dr McGill’s opinion was based on his finding that Mr Gregoire ‘does not have radiculopathy’ nor did Mr Gregoire ever suffer ‘prior clinically significant radiculopathy’. In Dr Griffith’s view he did suffer neurological symptoms referable to the left lower limb and this was principally caused by the damage to the L4/5 and L5/S1 protrusive disc pathology due to the injuries in 1996 and 1997, a view consistent with the 2008 report of Dr Nall.
99. The AMA Guides are set out earlier. A zero per cent assessment requires the Tribunal to be satisfied, as relevant, that there are ‘no significant clinical findings, no observed muscle … spasm, no documentable neurologic impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury’. The Tribunal notes that the variation in descriptions of Mr Gregoire’s conditions in the medical reports and the absence of correlation between the language employed in some reports and those in the Guides has contributed to the difficulty of evaluating the evidence.
100. Mr Gregoire has an accepted condition of ‘muscle spasm’. Dr Griffith maintained that the muscle spasm description is a symptom not a diagnosis. Leaving aside the appropriateness of that diagnosis, this finding alone would mean that Mr Gregoire’s condition does not fall within the DRE I band. That leaves for consideration whether his condition meets the criteria in either DRE II or DRE III.
101. The Tribunal notes that the first alternative criterion for DRE II is that the ‘Individual had a clinically significant radiculopathy, … but no longer has the radiculopathy following conservative treatment’ (emphasis added). As the criteria are expressed in the alternative, only one has to be met or denied for the purposes of the assessment. ‘Radiculopathy’ is damage to spinal nerve roots occurring at any level of the spine manifested in pain, weakness with symptoms going down, for example, the leg. Since Mr Gregoire has continued to suffer pain over 15 years despite conservative treatment, and that pain is attributable to discogenic damage and impingement to nerve roots, damage which is work-related, the Tribunal finds that he would not fall within this category. Accordingly, the Tribunal turns to the criteria for DRE III.
102. The first criterion for DRE III is ‘significant radiculopathy, such as dermatomal pain and/or in a dermatomal distribution’. The earlier discussion about pain radiating to Mr Gregoire’s left leg and to referred pain indicate that at least from February 1997 he was experiencing, at times a significant level, of pain exhibiting a dermatomal distribution relative to the injuries to his spine, and hence suggestive of radiculopathy.
103. Evidence supporting this finding is as follows. Dr Chen in 1998 referred to ‘left buttock and thigh pain’, and to ‘occasional twinge in the left buttock/lateral thigh’. Although she found no actual neurological impairment in the lower limbs, she did refer to a slight diminution in the right ankle jerk, and lower lumbar disc protraction with mild impingement of the left sciatic nerve root. Dr Ashman noted ‘acute disc protrusion possibly at two lumber intervertebral levels’. These are examples of radiological information which are evidence of radiculopathy.
104. Dr Morton in the application for compensation for permanent impairment in June 2009 referred to ‘pain radiating to the left leg, recurrent low back pain’, and ‘subsequent facet joint dysfunction’. In 2010 he said that the disc prolapse at L5/S1 had produced nerve root irritation and in his referral letter to Dr Bradshaw in 2010 he noted active conditions of ‘facet joint dysfunction (26 August 2008)’, and ‘radiculopathy – lumbar (Left) Left S1 (8 June 2010)’.
105. In 2008, Dr Nall noted that Mr Gregoire was not suffering ‘significant radiculopathy’ but not that he was radiculopathy-free. However, he also said ‘although there is some evidence of nerve root tension, there are no clinical findings to suggest a significant nerve root compression which could be expected following a chronic disc prolapse’. His comment did not rule out some level of nerve root tension. The Tribunal also notes that when he provided his report Dr Nall was not privy to the MRI results in 2009 which showed significant disc pathology. Dr Nall also recorded Mr Gregoire as saying that in 2007-08 he had taken many days off work because of pain, and this was in a period prior to the recurrence of his vascular condition. Dr Nall also concluded that ‘the injury of 1996 was responsible for the recurrent episodes of pain that he has had since then’.
106. The 2004 CT scan found diffuse bulging of the L4/5 disc, encroachment on the intervertebral foramen, but no ‘major degenerative changes’. However, the MRI in 2009 indicated disc bulging or herniation at the three lower lumbar discs and slight encroachment of the L4 nerve root and compression of the L5 nerve root. The pathology at those spinal levels was capable of leading to the pain he experienced.
107. After the angioplasty procedure in late 2010, Dr McGill said Mr Gregoire experienced immediate improvement in his ‘left lower limb symptoms’. However, he recorded that Mr Gregoire continued to experience a ‘constant ache in the low back’. As he said ‘He also still has left lower limb symptoms which he described as a tearing like feeling going from the left buttock to the hamstring and down the leg to the calf and ankle’. However, Dr McGill’s conclusion was that ‘His neurological examination was normal with no suggestion of lumbar nerve root irritation’. Dr McGill explained the cause of the continuing pain as a combination of the vascular condition coupled with the constitutional degeneration of Mr Gregoire’s spine. As mentioned earlier this fails to take account of the evidence from X-rays, CT scans and the MRI of significant deterioration in the lower lumbar levels coincident with the levels of the spine injured in 1996 and 1997, and the alleviation of his vascular symptoms.
108. Dr Griffith in his May 2010 report supported the record of injury to the left L5 nerve root and possibly the S1 nerve root also. He also noted ‘persistent sciatica’, and ‘spinal stenosis’. Dr Griffith’s description of Mr Gregoire’s spinal pain was that it ‘involves the buttocks and his left lower limb in an L5/S1 distribution, most marked in the L5 dermatome region’ Dr Griffith in his June 2011 report noted muscle power and tone appeared normal but sensation was ‘diminished in the left L5/S1 dermatomes as previously described’. He also referred to the results of the MRI as indicating:
central canal stenosis … due to multiple pathology, degenerative two level L4/5 & L5/S1 facet joint hypertrophy, ligamentum flavum thickening, a constitutionally narrow canal and disc bulging particularly at L4/5 and secondarily at L5/S1 which compromises the left L5 nerve root.
109. His conclusion, for clinical purposes, was that Mr Gregoire’s condition was stable but would progress slowly. However, he said in view of the ‘compression neuropathy involving the left L5 nerve root from onset, and that this continues to be a source of concern’ a proper assessment was a ‘Grade III DRE lumbosacral impairment of 13%’.
110. The Tribunal finds that the evidence that Mr Gregoire continues to experience pain in the dermatomal regions associated with the parts of the spine initially injured in 1996 and 1997 suggest that those injuries continued to play a significant role in his degenerative back condition. That finding would be sufficient to assess his claim as meeting the criteria for Grade DRE III. However, the Tribunal has considered other criteria for the DRE III grade.
111. The first criterion is ‘sensory loss’. Apart from the discussion of pins and needles in Dr Nall’s report a discussion referable to Mr Gregoire’s vascular condition, there was no evidence of sensory loss. Dr McGill records Mr Gregoire as saying ‘he could not recall experiencing paraesthesia or numbness’. Dr Nall, however, did refer to symptoms of pain in his left buttock radiating down his left lower limb with occasional pins and needles, symptoms which Dr Nall said improved following an angioplasty ‘but did not entirely disappear’. So this suggests Mr Gregoire may have continued occasionally to experience pins and needles after the procedure. The evidence is, however, too insubstantial to rely on.
112. A further criterion is ‘Loss of muscle strength of measured unilateral atrophy above or below the knee’. Dr McGill in his July 2010 report found that the lower limb musculature was essentially symmetrical. He recorded the circumference of Mr Gregoire’s right calf, 24cm proximal to the medial malleolus, as 31.0cm, compared with 30.6 cm on the left. His history was of ‘excellent (normal) strength in all muscle groups in both lower limbs’. He provided no further measurements in later reports.
113. Dr Griffith in his May 2010 report found that Mr Gregoire’s left thigh was 2cm smaller in girth than the right, and the left calf 3cm smaller than its left sided equivalent. In his June 2011 report he recorded Mr Gregoire’s left thigh as exhibiting 2.5cm of wasting 10cm above the knee joint compared with the right thigh, and the calf was 1 cm smaller in circumference than the right sided equivalent. So despite the variation in his measurements, he continued to detect wastage which evidences atrophy above or below the knee. The instructions in the AMA Guides for ‘atrophy’ say ‘For reasons of reproducibility, the difference in circumference should be 2cm or greater in the thigh and 1cm of greater in the arm, forearm, or leg’. Dr Griffith’s measurements on both occasions meet those requirements.
114. Conclusion
115. The evidence in this matter is finely balanced. However, the Tribunal did find Mr Gregoire to be a witness of truth. Overall, the Tribunal prefers the evidence of Dr Griffith to that of Dr McGill as Dr Griffith was able, initially, to take a more complete history than Dr McGill, and despite making some concessions concerning the accuracy of his initial report which was based on incomplete evidence, he has maintained the key findings. His evidence was also consistent with the continuing experience of pain by Mr Gregoire, the existence of radiculopathy, the deterioration of those parts of his lumbar spine as evidenced by electrodiagnosis correlating with the damage to the spine in the initial injuries, and the slow development of his constitutional degenerative spinal condition.
116. On that basis, the Tribunal sets aside the decision under review and finds that Mr Gregoire qualifies for an assessment of at least ten to 13 per cent under DRE III of the AMA Guides and that Comcare is liable to compensate Mr Gregoire for permanent impairment due to his accepted in jury in accordance with sections 24 and 27 of the Act.
117. Liberty to apply for costs is granted.
I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .............................[sgd]...............................................
Caitlin Baillie, AssociateDate of Hearing 18-19 May 2011
Date of Decision 31 October 2011
Counsel for the Applicant Andrew Muller
Solicitor for the Applicant Sarah Schoonwater.
Slater and Gordon Lawyers
Counsel for the Respondent Matthew Gollan
Representative for the Respondent Donna Hatton
Australian Postal Corporation
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