Howells and Comcare - [2001] AATA 531

DECISION AND REASONS FOR DECISION [2001] AATA 531

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1997/1226

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DAVID HOWELLS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr. K.L. Beddoe, Senior Member Miss A.M. Brennan, AM, Member Dr. K.P. Kennedy, OBE, Member

Date14 June 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  (Sgd) K L Beddoe
  Senior Member

Decision No: 531/2001
CATCHWORDS
COMPENSATION – permanent impairment – lower back injury incurred during Army service – whether entitled to lump sum payment – whether new relevant impairment
WORKERS' COMPENSATION -
Safety Rehabilitation and Compensation Act 1988: s24(1)
Compensation (Commonwealth Government Employees) Act 1971
Commonwealth Employees Compensation Act 1930: s9
Brennan v Comcare(1994) 122 ALR 615

REASONS FOR DECISION

14 June 2001 Mr. K.L. Beddoe, Senior Member Miss A.M. Brennan, AM, Member Dr. K.P. Kennedy, OBE, Member

By an application dated 25 September 1996 the applicant claimed compensation for an injury being fractured lumbar vertebra at L3/4 and said to have occurred on 23 February 1965. The injury was said to have been caused by the applicant being thrown off an Army truck because a sideboard failed. By letter dated 21 February 1997 a delegate of the respondent admitted liability for compensation.
By a claim dated 28 February 1997 the applicant made claim for compensation for permanent impairment. By letter dated 18 March 1997 the respondent refused the claim on clearly erroneous grounds.
The applicant sought reconsideration by letter dated 22 September 1997. The respondent affirmed the primary decision on different grounds. The applicant sought review in this Tribunal by an application for review lodged on 9 October 1997 in the Melbourne Registry.
Section 24(1) of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides that where an injury to an employee results in a permanent impairment, the respondent is liable to pay compensation to the employee in respect of the injury. Section 24(2) of the Act provides that for the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)The duration of the impairment;
(b)The likelihood of improvement in the employee's condition;
(c)Whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)Any other relevant matters.
Section 124(3) of the Act relevantly provides that a person is not entitled to compensation under section 24 of the Act in respect of a permanent impairment, being an impairment that occurred before 1 December 1988 if the person was not entitled to receive compensation of a lump sum in respect of that impairment where the impairment occurred after the commencement of the Compensation (Commonwealth Government Employees) Act 1971.
Section 124(4) limits the amount of compensation liable to be paid under section 24 in respect of a permanent impairment that occurred before 1 December 1988 to that compensation which would be payable under the 1930 Act or the 1971 Act, as in force when the impairment occurred.
Section 4(1) of the Act defines "impairment" to mean 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.
By virtue of the definition of "permanent" also in section 4(1) an impairment will be a permanent impairment if it is likely to continue indefinitely.
In these reasons we have referred to the guide prepared in accordance with section 28 of the Act as the "Comcare Guide".
At the hearing, Mr. McGhee appeared for the applicant and Miss Ford appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal and further documents were tendered and marked as exhibits.
The following persons were called to give oral evidence:
(a)The applicant
(b)Dr. Thomas – General Practitioner
(c)Dr. Gillett – Orthopaedic Surgeon
(d)Dr. Boys – Orthopaedic Surgeon
We make the following findings of fact.
The applicant, who was born on 30 April 1945, enlisted as an apprentice in the Army on 9 January 1960. His medical examination on enlistment, which is dated 6 September 1960, was clear. (T3)
On 23 February 1965 the applicant suffered injury in an accident while acting in the course of his Army employment. Document T3 includes a copy of a report apparently signed by the applicant while in 2 Camp Hospital on 2 March 1965. The report includes a statement of the circumstances of the injury as follows:
"On Tue 23 Feb 65 while returning from work in the back of a truck the side gave way and I and another man fell from the truck onto my back. I could not stand up and was taken to SME RAP and then went to bed in the Unit lines. The following morning I reported to SME RAP and from there to 2 Camp Hospital where I was admitted."

The applicant was discharged from 2 Camp Hospital on 29 March 1965 with a direction to return to his unit on light duties to be reviewed after one week. Those light duties continued for some time but did not interrupt the applicant's training. No further injury to his back was reported by the applicant prior to his discharge from the Army on 9 January 1970.
The applicant was subsequently determined to be fit for field service everywhere and served in the Small Ship's Squadron for four years four months prior to his discharge in January 1970. Reason for discharge was expiration of engagement.
Service in the Small Ships Squadron included service in South Vietnam. While serving on small ships in confined spaces, the applicant said he experienced discomfort with his back. He was reluctant to answer questions put to him in cross-examination but we are satisfied that he experienced back pain from time to time while working in confined spaces on the ships. He also experienced discomfort to other parts of his body because of working in confined spaces.
In cross-examination, the applicant said, and we accept, that he ceased playing sports generally after the back injury in 1965. He said this was because of his service in small ships and not being granted leave. We accept that he was unable to play sport while serving on a ship but we do not accept that this prevented him playing sport when land based, when on leave or after discharge from the Army. We think it is more likely than not that the admitted discomfort from his back while on board a ship was a continuing factor in causing the applicant to not engage in physical exertion, on a voluntary basis, because of back discomfort experienced as a result of such exertion. In this regard we have taken into account the applicant's evidence that he gave up playing competitive squash after leaving the Army but did continue with social squash fortnightly.
The applicant said, and we accept, that he has experienced low level back pain since the back injury in 1965. It was not of a level as to stop him working and would clear up a few days after performing heavy work.
That evidence is consistent with the history taken by Dr. Thomas which includes the following:
"The first time that he consulted me about his back was on 26 June 1996 when he had noticed a gradual worsening of the low grade symptoms to which he had become accustomed." (Exhibit B)

That statement is confirmed by Exhibit 6 and a perusal of the clinical notes of the Carina Medical Centre (Exhibit H).

THE MEDICAL EVIDENCE

Document T3 includes a copy of the applicant's Medical Examination Record on discharge from the Army dated 15 December 1969. That report notes the only incapacity as being left high tone hearing loss. As to the applicant's spine the report notes "Spinal movements free and full no disability from injury of 1965". That comment is consistent with the In/Out – Patient Reference Sheet dated 11 May 1965 (T3/28) noting restricted spinal flexion but otherwise full movement and "no backache".
Exhibit G includes a copy of a report by Dr. Chotai dated 21 March 1999 and addressed to the applicant's solicitors. Dr. Chotai was visiting medical practitioner at the applicant's employer. He records two consultations, one in 1993 and the second in 1995. Neither consultation was in relation to back injury or symptoms. It might be inferred that both matters were or were thought to be conditions arising in the course of the applicant's present employment. We make that inference because Exhibit H indicates that the applicant attended Carina Medical Centre on a fairly regular basis for a variety of medical matters. We do not draw any other inference from Dr. Chotai's report.
Exhibit 1 is a report by Dr. Douglas, Physician, Rheumatologist, dated 15 October 1999 and addressed to the applicant's solicitors. The applicant's solicitors lodged the report in the Tribunal on 19 October 1999 but it was tendered at the hearing by the respondent. The applicant objected to the tender on the basis that Dr. Douglas had not been called for cross-examination. The objection was not allowed.
Dr. Douglas found disc degeneration at L2/3 and L4/5. There was some narrowing in these disc spaces and minor spondylotic changes at other levels. He found no evidence of spinal fracture. He also found that there was further degeneration at L2/3 between 1996 and 1999 and minor changes at L3/4, L4/5 and minor narrowing at L5/S1 but which remained unchanged.
Dr. Douglas was of the opinion that the applicant had a permanent incapacity in his lumbar spine which was permanent prior to December 1988. He assessed the impairment at 10% of the whole person without referring to a Comcare impairment table.
Exhibit B is a report by the applicant's general practitioner, Dr. Thomas dated 25 May 1998. Dr. Thomas assessed permanent impairment of the lumbar spine at 10% in accordance with Table 9.6 of the Comcare tables.
Dr. Thomas' oral evidence satisfies us that the applicant's back condition was not noted as being a problem prior to June 1996 when the applicant told her that he had noticed a gradual worsening of the low grade symptoms to which he had become accustomed.
Dr. Thomas attributed the worsening of symptoms to heavy lifting outside the applicant's work and in particular lifting of his wife who was dying of cancer in 1993 and 1994.
Dr. Gillett, Orthopaedic Surgeon, made reports dated 6 September 1999 addressed to the respondent's solicitor (Exhibit C), 28 January 1999 addressed to the applicant's solicitor (Exhibit D) and a short report dated 17 October 2000 also to the applicant's solicitor (Exhibit E).
The report of 28 January 1999 is a detailed medico-legal report. Dr. Gillett reported a history which included aggravation of pain in the back over the previous seven to eight years. That was attributed to long periods of driving and stresses of daily life with particular reference to the period when the applicant's wife was dying.
Discomfort was also attributed to the applicant's present employment as a maintenance fitter and other physical activity including sex.
Dr. Gillett was of the opinion that the back condition was essentially degenerative with post-traumatic pathological changes which, on the history given, could be linked back to the 1965 incident.
Using Table 9.6 of the Comcare tables, Dr. Gillett assessed whole person impairment at 10%. The condition should be regarded as permanent, there being an injury in 1965 which caused damage to the spine causing an underlying progression of degeneration over the years. He thought the condition was permanent before December 1988 because the pathological process was in situ and further deterioration is likely to occur with the passing of time. He thought the deterioration had occurred after December 1988 (Exhibit E).
Exhibit C which is Dr. Gillett's report to the Australian Government Solicitor dated 6 September 1999 includes the following:
"Based on what information you give me I would say the nature of his permanent impairment prior to the 1.12.88 was that he had a permanent problem related to his lumbar spine that was historically linked to the accident of 1965. The nature of that was that a pathological process was in place which eventually has become symptomatic. It is my understanding that it was not symptomatic prior to 1.12.88 but ongoing symptoms have developed since that time and that is the pathological process that he currently has was in situ and in place prior to 1.12.88."

In Exhibit D, Dr. Gillett noted that the applicant gave up playing Australian Rules football, squash and tennis after the injury in 1965. Dr. Gillett maintained his opinion in his oral evidence although he acknowledged that there would be a loss of agility due to aging and there is not a significant loss because the applicant still works as a maintenance fitter.
In cross-examination Dr. Gillett maintained his opinion, but the following question by Miss Ford and the answer in effect qualified his opinion:
"Q.And you would expect someone with this sort of a condition to have some difficulties working in confined spaces?
A.He may have.
Q.So if he had reported that, that wouldn't be surprising to you?
A.No."

Document T4 is a report by Dr. Boys, Orthopaedic Surgeon dated 17 February 1997, and addressed to the respondent's delegate. Dr. Boys found permanent impairment being osteoarthritic degenerative change lower lumbar spine. He linked that to fractures of the "traverse processes of lumbar vertebrae 3 and 4". In particular, he thought the bony injury could be attributed to the 1965 incident and he thought the injury had accelerated normal degenerative change. He also assessed impairment at 10% under Table 9.6 of the Comcare tables which he attributed to service activities prior to 1 December 1988 with no subsequent incident or aggravation giving rise to additional impairment (Exhibit 3).
In his initial report (T4) Dr. Boys assessed a 15% loss of efficient use of the back. In a further report dated 19 January 2000 (Exhibit 4) he expressed the opinion that the loss of efficient use of the spine at 1 December 1988, was possibly somewhat less than that quantified by him in 1997. He thought, as an "educated guess that it would be reasonable to assume" that the applicant had loss efficient use of his spine in the range of 10% to 15% on or about 1 December 1988. In cross-examination by Mr. McGhee, Dr. Boys agreed that his assessment of impairment at 1 December 1988 was speculation or conjecture. As he said in his report of 19 January 2000 (Exhibit 4) he did not have information available as to the clinical state of the applicant's spine at 1 December 1988. In that report Dr. Boys assumed a 10% impairment using Table 9.6 of the Comcare tables. In response to questions by the Tribunal, Dr. Boys made it clear that he was considering impairment rather than symptoms.
CONSIDERATION
The essence of the applicant's case is that Dr. Gillett has correctly assessed the applicant as not having a permanent impairment as at 1 December 1988. This position is supported by the contemporary medical records which show that although the applicant attended his medical practitioner and his employers medical practitioner for other medical conditions, he did not seek medical assistance for a back condition. The employer's medical file contains details of minor injuries occurring in 1993 and 1995 (Exhibit G). While it might be reasonable to infer that these were work-related injuries, it is sufficient for present purposes to find that these two injuries have no direct relevance to a back condition.
In any event the applicant says there is simply no evidence of impairment of the applicant's lumbar spine by 1 December 1988 with the present impairment occurring since that date.
It is clear to us and we find that the relevant injury occurred prior to 1 December 1988, the date being on or about 23 February 1965. Further, we are satisfied that the injury was an injury within the terms of section 9 of the Commonwealth Employees Compensation Act 1930.
We are also satisfied that the applicant would not have been entitled to a lump sum payment in respect of the injury or consequential impairment under the 1930 Act (excluding redemption of weekly payments).
We also find that the applicant's back condition is the result of permanent damage to the spine and is a permanent impairment within the terms of the Act.
We are not satisfied on the material before us that the gradual worsening of the back condition can be accepted as a new impairment which became permanent after 1 December 1988. In our view, the impairment was caused by the injury to the applicant's back in 1965 and that is the relevant damage to the back which has remained with the applicant from the time of injury.
The applicant's own evidence satisfies us that he suffered restriction of movement because of impairment from the time of his Army service. We accept that over the years the injury gradually became more symptomatic although not such as to prevent the applicant continuing to engage in his employment. In that regard we accept that the applicant's employment was of such a nature that he was able to avoid undue aggravation of the injury and further impairment.
The impairment arose from the injury in the course of employment. There was not, in our view, more than one relevant impairment. In that regard we note that there has been an ongoing degenerative condition of the lumbar spine not attributable to the injury in 1965.
We have come to the view that the relevant impairment is the impairment caused by the injury in 1965 which thereafter resulted in restriction of movement insofar as activities of sport and work were concerned.
That restriction of movement was the impairment caused by the injury and was likely to continue indefinitely, as it has in fact done so, from a time proximate to the injury.
We are not satisfied that there has been a new relevant impairment although it is clear, on the material, that the applicant's lumbar spine has become more symptomatic over the past five years. The resulting increase in impairment reflects an age related degenerative condition which we are satisfied does not result from an injury as defined and has no causative link with the applicant's Army service.
The applicant was not entitled to payment of a lump sum under the 1930 Act in respect of the injury to his lumbar spine. It follows that because the relevant impairment is a permanent impairment that became permanent before 1 December 1988, section 124(3) of the Act operates to deny entitlement to compensation under section 24(or 25) of the Act. (Brennan v Comcare (1994) 122 ALR 615 per Burchett J at 619 and Gummow J at 631.)
The decision under review will be affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. K.L. Beddoe, Senior Member; Miss A.M. Brennan, AM, Member and Dr. K.P. Kennedy, OBE, Member.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20, 23 October 2000
Date of Decision  14 June 2001
Counsel for the Applicant        Mr. K.J. McPhee
Solicitor for the Applicant         Ryan Carlisle Thomas
Counsel for the Respondent    Ms. E. Ford
Solicitor for the Respondent    Australian Government Solicitor's Office