Hosking and Military Rehabilitation and Compensation Commission
[2008] AATA 327
•22 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 327
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/619
GENERAL ADMINISTRATIVE DIVISION ) Re RICHARD HOSKING Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date22 April 2008
PlaceSydney
Decision The decision under review is affirmed. ......................[sgd]........................
Senior Member, Mrs Josephine Kelly
CATCHWORDS
COMPENSATION – permanent impairment - neck injury during service – accepted service caused conditions – cervical disc lesion C6 vertebrae – spondylosis of C5/6 vertebra – cervical osteoarthritis – whether accepted conditions permanent impairment – headache condition claimed – whether headaches injury – whether headaches caused by accepted conditions - medical evidence considered – held nil impairment rating for accepted conditions under Tables 9.4 and 9.6 - held no liability for headaches – caused by underlying pathology on C1 – C3 vertebra - not materially contributed to by service – reviewable decision affirmed - no order for costs proposed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 24, 27, 67
Guide to the Assessment of the Degree of Permanent Impairment 2005 (2nd edition), Tables 9.1, 9.4, 9.6, 13.1
Comcare v Fiedler (2001) 115 FCR 328
REASONS FOR DECISION
22 April 2008 Senior Member Mrs Josephine Kelly 1. Mr Richard Hosking served in the Australian Army from December 1990 until July 2002. As of 18 May 2006 the Military Rehabilitation and Compensation Commission (“the Commission”) had accepted liability for the following injuries ("the accepted conditions") suffered by Mr Hosking as a consequence of a neck injury that occurred in 1995 during service:
(i) cervical disc lesion (C6) injury;
(ii) spondylosis of the C5/6 IVD (inter-verterbral disc) injury with left C6 radiculopathy; and
(iii) cervical osteoarthritis.
2. In the letter dated 18 May 2006 accepting liability for "cervical osteoarthritis", liability was not accepted for a claimed headache condition.
3. A second letter dated 18 May 2006 refused to pay lump sum compensation for permanent impairment for Mr Hosking's accepted injuries.
4. Both those decisions were affirmed on 17 July 2006. Mr Hosking seeks the review of that decision.
THE ISSUES
5. The issues in these proceedings are:
a) Is the Respondent liable to pay Mr Hosking compensation for permanent impairment pursuant to s 24 and s 27 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) for the accepted conditions, and if so, what is the degree of impairment(s) pursuant to the Guide to the Assessment of the Degree of Permanent Impairment (2nd edition) (“the Guide”)?;
b) Has Mr Hosking suffered a headache ‘injury’ for which the Commission is liable pursuant to s 14 of the Act?;
c) If so, does this Tribunal have jurisdiction to determine whether Mr Hosking is entitled to compensation for permanent impairment arising from the headache injury?
d) If the Tribunal has jurisdiction, is Mr Hosking entitled to such compensation and if he is, what is the degree of impairment?
THE CASE FOR MR HOSKING
6. Mr Richards of counsel appeared for the Mr Hosking. Before the hearing, the case for Mr Hosking as set out in the Applicant's Statement of Issues and Statement of Facts and Contentions had not included a claim for permanent impairment in respect of the claimed headache injury. Mr Richards raised that issue at the beginning of the hearing. Mr Kelly of counsel, who appeared for the Commission, argued that the Tribunal has no jurisdiction to deal with that question. We address that issue later.
Table 9.4 – Limb Function – Upper Limb
7. Table 9 of the Guide deals with permanent impairments of the ‘Musculo-Skeletal System.’ In relation to Mr Hosking's left upper limb, Mr Richards argued that Mr Hosking has 10% whole person impairment under Table 9.4 of the Guide, that is, he:
can use the limb for self care AND grasping and holding BUT has difficulty with digital dexterity.
8. Mr Richards provided written submissions on the meaning of "dexterity" and "difficulty". He relied on the decision of Comcare v Fiedler (2001) 115 FCR 328.
9. Mr Richards relied on the evidence of Dr Bleasel, orthopaedic surgeon, who provided two written reports and gave oral evidence. He also claimed that the evidence given during cross-examination by Dr Cameron, consultant neurologist, establishes 10% whole person impairment under Table 9.4. He referred to Mr Hosking's evidence that he has difficulty writing notes with his left hand (he is right handed), tying shoelaces, pressing the buttons on a mobile telephone, with buttons on a shirt and cutting food. At one stage, Mr Richards seemed to suggest that Mr Hosking satisfied the criterion for a 20% impairment, that is:
Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding.
However I did not understand him to press that submission.
Table 9.6 – Cervical Spine
10. Mr Richards conceded that Mr Hosking satisfied the criterion to be assessed as having a 5% whole person impairment of his cervical spine under Table 9.6 of the Guide, that is, “Minor restrictions of movement” rather than the criterion for 10%, which is “Loss of half normal range of movement.” He did note that Dr Bleasel had assessed Mr Hosking as having 10% under the table, however, I did not understand him to rely on that assessment.
Headaches and Table 13.1 – Intermittent Conditions
11. Mr Richards argued that the evidence of Dr Cameron, consultant neurologist, and Dr Bleasel, neurosurgeon, establishes that the headaches Mr Hosking suffers are directly related to the accepted cervical spondylosis, and therefore the Commission is liable pursuant to s 14 of the Act. Mr Richards then submitted that Dr Cameron's evidence was bizarre because he accepted that the neck condition contributed to the headaches but then took no further account of that finding in his assessment. Mr Richards said that Mr Hosking's headaches in the frontal lobe are stress headaches, and those in the back of the head are caused by the neck condition.
12. He relied on the evidence of Dr Bleasel to argue a 10% permanent impairment for the claimed headache condition under Table 13.1 of the Guide, which is entitled "Intermittent Conditions". Relevantly Table 13.1 provides:
Principles: Determine the frequency, duration and severity of attacks with reference to the degree of interference with activities of daily living
…
0% Attacks may be of any frequency BUT do not interfere with activities of daily living
10% Attacks occur 12 or more times a year AND cause minor interference with activities of daily living OR
Attacks occur less frequently AND cause interference with all activities of daily living other than self care.
…
13. Mr Richards pointed to Mr Hosking's evidence that he has headaches about twice a week to satisfy the frequency criterion. He relied on Mr Hosking's evidence that he had to lie down in the past, and is nauseous 75% of the time when he suffers headaches in the back of his neck, to satisfy the interference with activities of daily living part of the table.
14. Mr Richards said that only Dr Bleasel had addressed permanent impairment under Table 13, but then said that Dr Burns, consultant neurologist, accepted that Mr Hosking has headaches but had given him 0% permanent impairment. Mr Richards submitted that we should reject the evidence of Dr Burns, because the history he obtained was inconsistent with Mr Hosking's evidence. Mr Hosking denied saying to Dr Burns that nothing exacerbates the pain. He said that the headaches in the base of the skull only come on when he has aggravated his neck, for example if he jolted his neck while running, or slept "the wrong way", or if he sits for a long period when his discs "get squashed up".
CONSIDERATION
15. Mr Hosking gave oral evidence. He also provided a written statement dated 4 December 2006.
16. There were a number of medical reports in evidence. The reports of Dr Dan in 1995 and 1996 are relevant in terms of the history of injuries, but do not assist us to determine the questions in these proceedings.
17. The first report of assistance is a quotation in the reviewable decision from a report of Dr Stafford, orthopaedic surgeon, of 27 January 2005:
“Resolving left C6 radiculopathy due to C5/6 degenerative disease. Richard suffered neuropathic pain in his let upper limb reaching his thumb and tingling and numbness about two weeks ago whilst he was jogging. Since then his symptoms have improved significantly. He has residual tingling in the left thumb with radiation into the radial border of the forearm. He has no neck pain. In 1994 he injured his neck whilst training with the army. At that time he had neck pain and neuropathic symptoms in his right upper limb that resolved over a period of twelve to eighteen months. In the intervening period he has been quite comfortable".
18. On examination, Dr Stafford found full range of neck motion, no neck tenderness, pressure over the left brachial plexus elicited tingling in the left thumb. He noted that the left C6 dermatome had impaired pin prick sensation. A recent CT scan demonstrated C5/6 degeneration with osteophytes formation. There was bilateral C5/6 foraminal stenosis. There was an old right sided C5/6 disc protrusion which was calcified. There was a left sided C7/T1 spur. Dr Stafford expected Mr Hosking's symptoms to continue to improve.
Dr Bleasel
19. Dr Bleasel saw Mr Hosking on 22 June 2005 and provided two reports of that date. He also gave oral evidence by telephone during which Mr Richards asked him to make certain assumptions based on the evidence Mr Hosking had given, and then give his opinion based on those assumptions.
20. Dr Bleasel's longer report set out the history he took, the symptoms complained of, his findings on examination and his conclusion that the 1995 injury had caused disc damage, disc protrusion and nerve root irritation at C5/C6 and C6/7, and that Mr Hosking had evidence of nerve root damage C6 and C7 left side and to a lesser extent C7 on the right. In that report Dr Bleasel listed Mr Hosking's symptoms as:
Occipital headaches easily produced by any aggravation of his head and neck movements;
Neck pain and he must always be conscious of his neck and careful with movement;
…Restriction of head and neck movement
…Left shoulder pain and left upper limb pain
Pins and needles down the left arm to the thumb and index finger
He must constantly work the fingers of the left hand opening and closing his grip and exercising thumb and fingers
There is a definite loss of dexterity because of stiffness and paresthesiae.
21. The second one page report is headed "Assessment of Impairments". Dr Bleasel considered Table 9.1 or Table 9.4 of the Guide could be used, and that under either Table he assessed 10% whole person impairment:
that is 'can use limb for self care and grasping and holding but has difficulty with digital dexterity left upper limb.’
22. The quotation Dr Bleasel set out is the criterion for 10% whole person impairment under Table 9.4 – Limb Function – Upper Limb.
23. Table 9.1 applies to Upper Extremity, however it refers to the loss of function of the shoulder, elbow, wrist, finger, and thumb joints. The criteria for 10% whole person impairment under that table are:
ANY ONE of the following:
. loss of less than half normal range of movement of shoulder or elbow
. loss of half normal range of movement of wrist
. ankylosis of any joints of fingers 2 and/or 3
24. During oral examination, Mr Richards asked Dr Bleasel how he had determined that Mr Hosking satisfied the 10% criteria in Table 9.4. Dr Bleasel did not have the Guide with him while giving his evidence. He said that he would have used the Tables and:
I say that either table 9.1 or 9.4, 10 per cent whole person because he can use the limb for self care and grasping and holding, but has difficulty with digital dexterity left upper limb.
25. Mr Richards then put to Dr Bleasel various symptoms about which Mr Hosking had given evidence. Dr Bleasel said that he had not recorded absolute numbness although he had recorded pins and needles. Dr Bleasel said that the various symptoms put to him by Mr Richards were consistent with Mr Hosking's injury.
26. In my view, Dr Bleasel clearly made a mistake when he referred to Table 9.1 in his impairment assessment report. In cross-examination he said, apparently referring to Table 9.1, that the left shoulder would have been enough to assess a 10% whole person impairment. However, there is nothing in his written report to support such a finding. Mr Hosking's oral evidence also did not support that finding. That raises some doubt in my opinion about the care with which he prepared the report and gave oral evidence.
27. Further, Dr Bleasel’s written assessment of 10% whole person impairment under Table 9.4 is not supported by detailed examination. He concludes in his first report that "There is a definite loss of dexterity because of this stiffness and paresthesiae". This is a reference to "pins and needles down the left arm to the thumb and index finger" and that "He must constantly work the fingers of the left hand opening and closing his grip and exercising thumb and fingers". During cross-examination he agreed that that is what Mr Hosking told him, not what he observed. Dr Bleasel also did not specify "digital dexterity", which is what the table is concerned with. He took no history of Mr Hosking having difficulty with tying shoe laces, doing up buttons or using the buttons on his mobile telephone or being careful when cutting vegetables because of the numbness in his left hand. He also did no testing of digital dexterity. During cross-examination he said that he may have observed difficulty when Mr Hosking was undressing, however he made no mention of that in his report.
28. In respect to Table 9.6 (Cervical spine), Dr Bleasel assessed 10% whole person impairment, that is, loss of half normal range of movement. Dr Bleasel recorded that:
There is restriction of head and neck movement. Most of his pain now is left-sided but there is some pain going out in the right trapezius area.
He also recorded in respect of head and neck movement "there is pain with extension and rotation". He made no reference to the extent of restriction of range of movement. He also did not refer to other movements of the neck including flexion and abduction. In my opinion, Dr Bleasel did not provide sufficient findings on examination to support his assessment under Table 9.6.
29. However, as previously noted, Mr Richards did not rely on this aspect of Dr Bleasel's opinion but conceded that Mr Hosking should be assessed as having a 5% impairment under Table 9.6 rather than 10%. Again during evidence in chief, Mr Richards put to Dr Bleasel the loss of movement Mr Hosking described during his oral evidence and had Dr Bleasel agree that it was less than half, and satisfied 5% under the table, that is "minor restrictions of movement".
30. Turning to the headache condition, I have some difficulty with Dr Bleasel's written assessment of 10% whole person impairment, which was apparently made on the basis of Table 13.1, although the Table is not specified in his report, and which both Mr Richards and Mr Kelly seemed to assume was in respect of Mr Hosking's headaches. I disagree. This is what Dr Bleasel wrote:
Activities of daily living, he has suffered a totally disabling attack due to jogging
Attacks occur less frequently than 12 per year but cause interference with all activities of daily living other than self-care, 10%.
31. There, Dr Bleasel has set out the second criterion for 10% whole person impairment, which is quoted earlier in this decision. What are the "attacks" that Dr Bleasel is assessing? Clearly, in my view, he is referring to the January 2005 aggravation of Mr Hosking's neck condition when jogging, and not to headaches. In his longer report he makes two references to the January 2005 aggravation:
January this year his neck and left arm pain was greatly aggravated after some jogging and for six weeks he was off duty. This was an aggravation of his then existing neck and left arm pain.
And later:
In January 2005 jogging he developed very severe pain left side of the neck, left shoulder, left upper limb down to the thumb and index finger of the left hand and also affecting the lateral forearm left side. He said the right-sided pain seems to have disappeared.
32. I conclude that Dr Bleasel was not assessing whole person impairment arising from headaches. He assessed whole person impairment arising from the aggravation of the neck condition that occurred in January 2005. Whether that is an appropriate application of Table 13.1 was not an issue before me.
33. Again, during examination in chief, Mr Richards put to Dr Bleasel symptoms about which Mr Hosking gave oral evidence in relation to headaches, and asked Dr Bleasel if he agreed that Mr Hosking met the first criterion in Table 13.1 for 10% whole person impairment. Dr Bleasel agreed.
34. The above analysis has led me to conclude that I am not assisted by Dr Bleasel's evidence. Mr Richards relied on the written assessment under Table 9.4 and sought to reinforce the assessment by putting a history to Dr Bleasel which he had not taken when he examined Mr Hosking. Mr Richards also sought successfully to have Dr Bleasel give a lesser assessment under Table 9.6 than he had in his report, and to give the same percentage assessment under Table 13.1 but according to a different criterion in the table and for headaches which I find Dr Bleasel had not assessed in 2005. I infer that Mr Hoskings' headaches were not troubling him very much when he saw Dr Bleasel in June 2005, and hence Dr Bleasel did not think to provide a whole person impairment assessment of that condition.
Associate Professor Burns
35. Associate Professor Burns, consultant neurologist, saw Mr Hosking on 28 March 2006 for medico-legal assessment. He prepared a report and also gave oral evidence. When he saw Professor Burns, Mr Hosking complained of headaches, that is, pain at the back of the neck predominantly on the left side, worse after prolonged sitting and which he attributed, at least in part, to tension. They occurred twice a week and lasted for hours. Nothing exacerbated the pain. Exercise and relaxation techniques may give relief and he may take Disprin. He initially had headaches in 1995 which seemed to settle, and they recurred the previous year. He did not vomit. His symptoms did not interrupt his daily activities to any significant degree and he was not confined to bed with them. He had numbness and tingling in the medial digits of the right hand and ulnar border of the hand. On the left side he had sensory disturbance involving the thumb and index finger which did not interfere with his activities in any way. He experienced a little tingling but his pain was very much better. His headaches were static but his left upper limb was better and his right hand symptoms were new and possibly becoming worse. Mr Hosking told Professor Burns that he could not attend the gym because it aggravated his neck pain. He had not played sport for some years and had not played golf since last year.
36. Professor Burns concluded that Mr Hosking suffered from muscle tension headaches which were unrelated to his cervical osteoarthritis. He found a full range of neck movements including flexion, extension, rotation and abduction. He found that the radiculopathy and cervical osteoarthritis was causing minimal functional impact, although they were unlikely to resolve, that is, they were permanent.
37. Although Professor Burns did not consider that Mr Hosking's headaches were service related, he did assess them under Table 13 as 0%. He also made assessments under Tables 9.1 and 9.6 and found 0% impairment under both. He noted that there were X-ray changes only. There are no restrictions of movement and there is no loss of function of the shoulder, elbow or wrist. That is clearly a reference to Table 9.1. The criterion for 0% impairment under that Table is “X-ray changes but no loss of function of shoulder, elbow or wrist.” As he found no restriction of movement of the neck, he allocated 0% under Table 9.6. He had seen Dr Bleasel's report, but his findings were different from Dr Bleasel's.
38. During his oral evidence, Professor Burns said that Mr Hosking's clinical symptoms and radiological findings related to C5/6 and C6/7. He said that he would not attribute the headaches Mr Hosking suffered to the cervical spine, and that such headaches are not common. He said that if C1, C2, or C3 are damaged, there might be pain in the back of the neck or referred to the back of the head or forehead.
Dr Cameron
39. Dr Cameron, consultant neurologist, saw Mr Hosking for medico-legal assessment on 14 March 2007. He prepared a report dated 4 April 2007. Mr Hosking told Dr Cameron that he occasionally went to the gym. On examination, Dr Cameron found that he performed fine movements normally. There was reduced sensation to light touch and pain in a left C6 distribution and some vague impairment in a right C6 distribution. Mr Hosking demonstrated a voluntary reduction in neck movements of 30 degrees in all directions. He concluded that the left cervical C5-6 radiculopathy appeared to have settled. He found that Mr Hosking's present symptoms related to underlying cervical spondylosis that was not caused by Mr Hosking's employment. He considered the 1995 incident was an aggravation of the underlying cervical spondylosis causing a disc protrusion to develop on the left resulting in a left radiculopathy.
40. Dr Cameron found that Mr Hosking's headaches might be permanent but caused intermittent disturbance, were multi-factorial and had not been caused by his employment, nor were they aggravated or accelerated by his employment.
41. He found minimal impairment related to his underlying degenerative cervical spondylosis which he assessed as 5% under Table 9.6 with no impairment related to his left C5-6 radiculopathy or his headache disturbances. He assessed 0% impairment under Table 13.1 for the headaches.
42. During his oral evidence, Dr Cameron described the various factors involved in the headaches as a migrainous stand alone condition, a muscular contraction component which appeared to be related to stress at times, and a small component which is a symptom of his cervical spondylosis. He said that Mr Hosking's cervical spondylosis was widespread, and not confined to C5/C6. He said the headache pain was not referred pain from C5/C6 but related to his spondylosis which was a degenerative condition.
43. During cross-examination, Dr Cameron confirmed that occipital headaches are caused by problems in the top three cervical vertebrae. He did not think Mr Hosking’s headaches were typical of muscular contraction. In his opinion, the predominant factor was migraine disturbance with associated muscular component and with a small component from underlying neck degeneration. He did not consider that a mid-cervical problem lead to a migrainous headache.
44. Mr Richards cross-examined Dr Cameron in relation to digital dexterity, putting to him the various symptoms Mr Hosking had given evidence about. Although Dr Cameron conceded that he might have some of those difficulties, that was not the history he had been given when he saw him in March 2007. At that time Mr Hosking reported experiencing discomfort in his left arm intermittently. It had occurred around twice over the previous six months, lasting a few weeks at most. The discomfort occurred in a C6 pattern and numbness also occurred in a C6 distribution.
CONCLUSION
Is the Commission liable to pay compensation for permanent impairment for Mr Hosking's accepted conditions?
45. A difficulty in this case is that different histories were taken by the doctors at different times, and which differed from the evidence given by Mr Hosking at the hearing. That is particularly the case in relation to his evidence about having difficulties with digital dexterity which Mr Richards relies on to satisfy 10% impairment under Table 9.4. Mr Hosking denied, could not recall, or may have said different things to different doctors. In fairness, I accept that it may be difficult to recall what was said and which symptoms were occurring at any particular time. However, that leads me to accept that the histories recorded by the doctors were accurate records of what Dr Hosking told them and, to the extent that he disagreed, his recollection was faulty.
Table 9.4
46. The only doctor to make an assessment under Table 9.4 was Dr Bleasel. Mr Richards also relied on his cross-examination of Dr Cameron as establishing that assessment under Table 9.4. I have already explained why I do not accept Dr Bleasel's assessment (at paragraphs [19] – [34]). When Dr Cameron saw Mr Hosking in March 2007, he made no findings to support an assessment under Table 9.4. At that time the C6 radiculopathy was intermittent.
47. Accepting that Mr Hosking was having the difficulties he described at the time at the hearing, I am not persuaded that they are permanent, that is, "likely to continue indefinitely" (s 4 of the Act). They were not part of the history given to any of the doctors.
48. I find that Mr Hosking has nil permanent impairment under Table 9.4.
Table 9.6
49. Mr Richards argued that Mr Hosking had 5% impairment under Table 9.6, that is, minor restriction of movement based on the oral evidence of Dr Bleasel as opposed to his written evidence, and on the assessment of Dr Cameron. Dr Cameron found minimal impairment related to his underlying degenerative cervical spondylosis which he assessed as 5% and no impairment related to his left C5-6 radiculopathy. Dr Cameron clearly explained his reasons for distinguishing between the accepted conditions and the cervical spondylosis in respect of which he made this assessment. Professor Burns found no restriction of movement. Nor did Dr Stafford in January 2005 when Mr Hosking had suffered a most serious aggravation.
50. I find that that Mr Hosking has nil permanent impairment under Table 9.6 attributable to his accepted conditions.
Liability for headache condition?
51. The explanations given by Professor Burns and Dr Cameron about the cause of Mr Hosking's headaches differ. However, the point of agreement is that pathology at C6 would not cause the headaches, but pathology in the C1 to C3 might. Professor Burns is quite clear that osteoarthritis is not a factor in causing the headaches. Dr Cameron's opinion is that spondylosis in the upper part of the spine makes a small contribution. Spondylosis is an accepted condition only in relation to C5/6. Their evidence persuades me that the headaches about which Mr Hosking complains are not a consequence of any of his accepted conditions. To the extent that Dr Bleasel's evidence is to the contrary, I prefer the evidence of Professor Burns and Dr Cameron. I am satisfied that Mr Hosking’s headaches were not contributed to in a material degree to by his military service.
52. There is therefore no liability to pay compensation in respect of Mr Hosking’s headache condition pursuant to s 14 of the Act.
Jurisdiction to address permanent impairment for headache?
53. Having made the finding that there is no liability for Mr Hosking's headaches, it is unnecessary to consider whether I have the jurisdiction to address a claim for permanent impairment under ss 24 and 27 of the Act in respect of that condition.
DECISION
54. For the reasons given above, I affirm the decision under review.
COSTS
55. As I have affirmed the decision under review, I have no power to make an order for costs under s 67(8) of the Act.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly.
……….……[sgd]……..…………
Steven Mulipola, Associate
Date of hearing: 7 December 2007
Date of decision: 22 April 2008
Counsel for the Applicant: Mr D Richards
Solicitor for the Applicant: Slater & Gordon
Counsel for the Respondent: Mr B Kelly
Solicitor for the Respondent: Dibbs Abbott Stillman
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