Hogbin and Military Rehabilitation and Compensation Commission
[2007] AATA 1187
•29 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1187
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/406
GENERAL ADMINISTRATIVE DIVISION ) Re GARY HOGBIN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly & Member, Dr Ion Alexander. Date29 March 2007
PlaceSydney
Decision 1. The reviewable decision is set aside and the matter is remitted for reconsideration with the direction that that reconsideration occur after Mr Hogbin has been referred to an appropriately qualified treating spinal surgeon who can give proper consideration to his situation, and advice as to his treatment options.
2. In our opinion, it follows that the MRCC pay Mr Hogbin’s costs of these proceedings pursuant to s 67(9) of the Safety, Rehabilitation and Compensation Act 1988. We will grant the MRCC 7 days in which to apply to the Associate to Senior Member Kelly to argue this matter. Otherwise, the order as proposed will be made.
..................[sgd]........................
Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
WORKER’S COMPENSATION – claim for further permanent impairment for back injury – issue whether impairment permanent – held these proceedings are premature – held appropriate medical consideration not given to Applicant’s situation – matter remitted for reconsideration.
CASES
Martin v Australian Postal Corp (1999) 29 AAR 420
Filla v Comcare Australia (2001) 115 FCR 144
Comcare v Filla (2002) 67 ALD 24
LEGISLATION
Sections 4(1), 14, 24(2), 67(9) Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Senior Member, Mrs Josephine Kelly & Member, Dr Ion Alexander. Introduction
1. Mr Gary Hogbin is a serving member of the Royal Australian Air Force (RAAF). He suffered an injury to his back on 6 July 2001 for which liability was accepted pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”). A determination was made on 12 February 2003 to accept 10% permanent impairment of the back pursuant to Table 9.6. These proceedings are concerned with Mr Hogbin’s claim dated 5 April 2005 for further permanent impairment of his “back” (T24). The reviewable decision dated 2 February 2006 affirmed an earlier decision denying liability.
2. For the reasons that follow, we set aside the reviewable decision and remit the matter for reconsideration with the direction that that reconsideration occur after Mr Hogbin has been referred to an appropriately qualified treating spinal surgeon who can give proper consideration to his situation, and advice as to his treatment options.
Background
3. The initial acceptance of liability was for posterior radial tear with nuclear protrusion at L4/5 without canal or foraminal stenosis; L5/S1 broad base disc protrusion without neurological compromise.
The case for Mr Hogbin
4. We heard oral evidence from Mr Hogbin and also had a written statement prepared by him. His case relied on evidence from Dr Bleasel, neurosurgeon, who provided a medico-legal opinion. We had three reports from Dr Bleasel, and also oral evidence when he and Dr O’Neill, consultant neurologist, gave evidence concurrently. Relevantly, Dr Bleasel’s opinion was that Mr Hogbin had 20% whole person impairment in accordance with Table 9.5, lower limb, that is, he can rise to standing position and walk, but has difficulty with grades, steps and distances. Further, that impairment was related to his work-related injuries. If we accepted that evidence, Mr Hobgin would succeed because he has a further 10% impairment from that previously assessed.
Consideration
5. Unfortunately, in our opinion, these proceedings are premature. This is a case where the proceedings have continued while the diagnostic and therapeutic process central to the decision has stalled. We consider that this has been contributed to significantly by the RAAF’s failure to ensure proper medical follow-up for Mr Hogbin after his treating orthopaedic and spinal surgeon, Dr New, was unable to continue seeing his patients.
6. On 1 June 2006 Dr New saw Mr Hogbin upon referral from a RAAF officer at 3 Combat Support Hospital Richmond. Dr New reported on 6 June 2006: “I concur with your concerns regarding his neck and right arm as well as back and right leg pain which bear further investigation. He has a long history of referred pain and I have organised an updated MRI of his cervical and lumbar spine, a technetium bone scan and nerve conduction studies. I plan to review him after he has had these investigations completed.”
7. Mr Hogbin said that when he saw Dr New he asked the doctor what would happen from there, and about an operation. Dr New told him that he would reserve judgment until he had received the results of the investigations.
8. A bone scan was done on 7 June 2006 (T142), an MRI scan was conducted on 15 June 2006 (Ex A1), and nerve conduction studies were carried out on 15 July 2006 (Ex A1).
9. There has been no review of these investigations by a treating doctor. Mr Hogbin said that he has been waiting for the RAAF to organise something. He knows that Dr New is unable to see patients.
10. There is evidence before us that there has been deterioration in Mr Hogbin’s back condition since 2002/2003, with increased symptoms, particularly in his right leg. There is also evidence that Mr Hogbin suffers from an additional impairment manifesting mainly as a limitation of certain activities as a result of pain.
11. Whether the increased whole person impairment reaches the additional10% threshold is arguable. There is conflicting evidence from the medical specialists, Dr Bleasel and Dr O’Neill, and there are discrepancies between Mr Hogbin’s evidence and contemporaneous medical records. Dr Bleasel assessed Mr Hogbin as having 20% impairment under Table 9.5 for lower limb. Dr O’Neill assessed 10% whole person impairment for lower back under Table 9.6 and 0% whole person impairment under Table 9.5 in respect of the right leg symptoms. Both accepted there was relevantly a causal connection with his employment.
12. There is objective evidence of patho-physiological deterioration in the MRI scan done on 16 June 2006 which reported a fragment of the L5/S1 intervertebral disc impinging slightly on the L5/S1 right sided nerve root.
13. The significance of this finding is not entirely clear. The medical evidence suggests that this finding is consistent with, and the most likely cause of, the symptoms in Mr Hogbin’s right leg. We note that on examination no practitioner has found any objective clinical evidence of nerve or muscle injury, that is, wasting in the right leg.
14. The oral evidence of Dr O’Neill and Dr Bleasel did not satisfactorily resolve this issue. Both doctors conceded that an operation is a real possibility as a treatment that may relieve some of Mr Hogbin’s symptoms. Dr O’Neill would not recommend an operation at present, and also said that it would be reasonable for Mr Hogbin to reject an operation. However, this opinion must be seen in the context of his assessment that Mr Hogbin does not have an additional permanent impairment. Dr O’Neill considered that Mr Hogbin’s history and examination indicated an intermittent problem not severe enough to warrant an operation. Dr O’Neill also said that that the severity of symptoms, the degree of limitation of activity, and presence of nerve injury are relevant factors when assessing the need for an operation. He said that in Mr Hogbin’s case he would recommend review by a panel of relevant experts, and perhaps further investigation, before deciding whether an operation is warranted. This was to ensure as far as possible that the cause of Mr Hogbin’s worsening symptoms was sufficiently defined so that if an operation were to be recommended it would be very likely that such an operation would relieve his symptoms.
15. Although Dr Bleasel conceded that on operation may lead to an improvement in Mr Hogbin’s symptoms, he said that surgical intervention does not always relieve symptoms and in some cases could make the symptoms worse. Significantly he focussed on possible complications, but did concede that the type of operation contemplated was of low risk. His opinion tended toward generality and in our view is somewhat puzzling. One would expect that most reasonable people would approach the prospect of a low risk surgical intervention positively if it were to relieve significant pain and or impairment. It appeared to us that Dr Bleasel was biasing his opinion in order to support his contention that Mr Hogbin had a significant increase in permanent impairment.
16. We emphasise that neither Dr Bleasel nor Dr O’Neill had considered the question of an operation in their reports and their evidence on the question arose when the Tribunal raised it during oral evidence. The only mention of surgery was Dr Bleasel’s comment in a report that Mr Hogbin was seeing Dr New and investigations of his back had been carried out but no decision regarding surgery has been reached.
17. We are not criticising either doctor for not addressing an operation as a possibility. They were not asked to do so before the hearing.
18. Before concluding our consideration of the medical evidence, we should refer to the report from Dr Farr, consultant orthopaedic surgeon, incorrectly dated 9 October 2003. MRCC referred Mr Hogbin to Dr Farr for assessment in relation to this permanent impairment claim. Dr Farr actually saw Mr Hogbin on 27 October 2005. This report is of little assistance because Dr Farr relied on a CT scan from 25 September 2001 and an MRI scan of 23 April 2002, that is, investigations carried out before acceptance of the first permanent impairment claim. He therefore did not take into account the further deterioration that had occurred as revealed in the 2006 investigations.
19. Given the evidence we have that it is possible that an operation would relieve Mr Hogbin’s symptoms, the critical issue is whether we are satisfied that his apparent increase in symptoms and impairment is permanent? If we are satisfied it is permanent then it will be necessary to determine the percentage of impairment.
20. The word “permanent” as defined in s 4(1) of the SRC Act means “likely to continue indefinitely”. That ‘does not mean ”to last for ever”’ (Burchett J in Martin v Australian Postal Corp (1999) 29 AAR 420 at 430). In Filla v Comcare Australia (2001) 115 FCR 144 Justice Katz said that Parliament’s use of the word “indefinitely” in the definition, meant ‘to refer to a period of time which, although undetermined, is substantial’.
21. We note the matters set out in s 24(2) to which we should have regard for the purpose of determining whether an impairment is permanent. We also note the consideration of what is meant by “rehabilitative treatment” in that subsection by Katz J in Filla at paragraph 22, and the comments of the Full Federal Court on appeal in that matter at paragraph 12 (Comcare v Filla (2002) 67 ALD 24).
22. In our opinion, as there has not been a proper consideration of the investigations done in 2006 and consequential recommendations made to Mr Hogbin, we are not in a position to determine whether his condition is permanent. An operation may or may not be advisable. It may or may not have significant risks. Further investigations may be needed before such advice can be given. Mr Hogbin may or may not wish to have an operation if it is recommended.
Decision
23. Accordingly, the reviewable decision is set aside and the matter is remitted for reconsideration with the direction that that reconsideration occur after Mr Hogbin has been referred to an appropriately qualified treating spinal surgeon who can give proper consideration to his situation, and advice as to his treatment options.
24. In our opinion, it follows that the MRCC pay Mr Hogbin’s costs of these proceedings pursuant to s 67(9) of the SRC Act. We will grant the MRCC 7 days in which to apply to the Associate to Senior Member Kelly to argue this matter. Otherwise, the order as proposed will be made.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine KellySigned: Ms Preethi Nimmagadda
Associate
Date of Hearing 14 March 2007
Date of Published Decision 29 March 2007
Solicitor for Applicant Wyatt Attorneys
Counsel for Applicant Allan Anforth
Solicitor for Respondent DLA Phillip FoxSolicitor for Third Party Mark Best
0
3
0