JAMIESON and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2010] AATA 778
•12 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 778
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0243; 2009/0251; 2009/1656
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | WILLIAM JAMIESON | ||
Applicant
| And | MILITARY REHABILITATION AND COMPENSATION COMMISSION |
Respondent
DECISION
| Tribunal | MJ Carstairs, Senior Member and Associate Professor JB Morley RFD, Member |
Date12 October 2010
PlaceBrisbane
| Decision | The Tribunal affirms the reviewable decisions. |
...............[Sgd]....................
Senior Member
CATCHWORDS
MILITARY COMPENSATION – Incapacity – Permanent impairment – Liability for psychiatric sequelae – Lumbar degeneration – Degenerative changes due to ageing – Permanent impairment not result of compensable condition – Reviewable decisions affirmed.
Military Rehabilitation and Compensation Act 2004 (Cth), ss 27, 68
REASONS FOR DECISION
| 12 October 2010 | MJ Carstairs, Senior Member and Associate Professor JB Morley RFD, Member |
In this application, William Jamieson seeks review of a number of decisions that have been made with reference to his service in the Australian Defence Force, in the Army Reserve. In particular, Mr Jamieson refers to injuries sustained on field exercises at Singleton, one in October 2003 (“the jerry can incident”) and the other in November 2004 (“the lifting bags incident”).
It should be said at the outset that Mr Jamieson’s claims with respect to each of these incidents was determined favourably to him in the first instance, albeit not without some persistence on Mr Jamieson’s part. After a series of reviews dealing with particular aspects of his initial claim (which identified problems with his “neck-left shoulder lower back left leg”, relying on both the jerry can incident and the lifting bags incident),[1] the respondent ultimately accepted liability for the following compensable conditions:
aggravation of lumbar degenerations at L2/3, L3/4, L4/5 and L5/S1 with sciatica, aggravation of soft tissue musculo-ligamentous injury to the neck and musculo-ligamentous injury to the left shoulder.[2]
[1] Exhibit R1: T5.
[2] The determinations to this effect were at Exhibit R1: T17, T42 and T43.
From this favourable determination accepting liability for injury arising in the jerry can incident and the lifting bags incident, other claims have followed, namely for permanent impairment (Matter 2008/0243), continuing incapacity (Matter 2009/0251) and psychiatric disorder (Matter 2009/1656), the last relying upon Mr Jamieson’s ongoing experience of chronic pain from his orthopaedic conditions.
In that regard, the matters before us resolve into three central issues:
i.Whether Mr Jamieson is entitled to be paid for permanent impairment with respect to the compensable conditions under the Military Rehabilitation and Compensation Act 2004 (“the Act”).
ii.Whether Mr Jamieson is entitled to payment of incapacity benefits under the Act with respect to periods after October 2005—the delegate having decided that, by that time, any contribution from Mr Jamieson’s employment as a reservist would have ceased to contribute to his incapacity and that any residual incapacity was attributable to underlying degenerative conditions.
iii.Whether Mr Jamieson’s major depressive disorder and alcohol dependency were service injuries under the Act.
The parties agreed that to succeed on the issues referred to in (ii) and (iii) above, Mr Jamieson needed to succeed on the first issue.
To succeed in this claim, Mr Jamieson needed to show that as a result of the compensable conditions, he had suffered an impairment that had stabilised and was likely to continue indefinitely: s 68 of the Act. The key words in that section are found in subsection (1)(b)(i), which requires that “as a result of the compensable condition, the person has suffered an impairment”. This central issue is determined by the medical evidence, to which we now turn.
THE EVIDENCE
The Applicant
In his statement,[3] Mr Jamieson said that he first injured his back and neck in the jerry can incident in October 2003. This was during an Army Reserve military exercise in the field: he repeatedly lifted full jerry cans of water, each weighing approximately 25 kg, off a large truck tray. This resulted in him developing pain in his neck, left shoulder and lumbar spine. However, he said that because in the past he had undergone muscle toughening courses, endurance courses and jungle training, he thought that the pain simply would go away; during his cross-examination he confirmed that he did not seek medical attention. Nevertheless, thereafter he found it necessary to take pain relieving medication frequently on a daily basis.
[3] Exhibit A1.
In the course of these proceedings, Mr Jamieson had a CT scan performed of his lumbar spine in the Pindara Private Hospital on 20 September 2004. The Radiologist, Dr Shane Thompson, described the findings at the L2/3 intervertebral disc level:
There is generalised disc bulge indenting the thecal sac. There are osteophytes on the vertebral margins.
Each of the other intervertebral disc levels of L3/4, L4/5 and L5/S1 was reported as showing no abnormality.[4]
[4] Exhibit R1: T6 at 101.
Then, when Mr Jamieson was again engaged in Army Defence activities in November 2004, the lifting bags incident occurred. It involved unloading vehicles of about 80 echelon bags weighing approximately 40 kg, each to be carried a distance and then up some stairs. Mr Jamieson described feeling sudden onset of severe lower back pain while carrying the third of the bags.
Dr Pollock, the Regimental Medical Officer at the Singleton Army Base, arranged for Mr Jamieson to have another CT scan of his lumbosacral spine, this being performed on 7 December 2004. The reporting radiologist, Dr Lynn Smith, provided a comprehensive description of the findings, before commenting that this examination showed osteophytic changes causing lumbar spinal canal stenosis at L2/3 and L3/4 levels, with a broad based annular L4/5 disc bulge, and a right paracentral L5/S1 disc bulge: i.e. there were changes at multiple intervertebral disc levels. She recommended that an MRI scan of the lumbar spine be performed.[5]
[5] Exhibit R1: T7 at 102-103.
On 14 January 2005, Mr Jamieson duly had a MRI scan of both his cervical and lumbar spines. The report was provided by Dr Kieran Frawley, who recorded his impression:
Degenerative changes at the L2/3 level and associated annular disc bulge is [sic] causing mild narrowing of the spinal canal. Mild annular disc bulge is noted at the L3/4 level and small central disc protrusion is noted at the L4/5 level. Again these are not causing significant compression of the thecal sac. No other focal abnormality is evident.[6]
[6] Exhibit R1: T9 at 105-106.
The MRI cervical spine scan findings were described as normal.
In his statement Mr Jamieson said that, since the lifting bags incident, he has been consistently taking pain relieving medications such as Tramal, Panadeine forte, Panamax and Panadol, prescribed by his General Practitioner, Dr James Bamford. He further stated that, to this present time, his pain continues to prevent him from working in his profession as an accountant: particularly, it distracts his concentration, and he cannot sit for any length of time. He told us at the hearing that he last worked full-time in 2005.
At the hearing Mr Jamieson told us that, because of his injuries, he was discharged from the Army Reserve in January 2006 on medical grounds. His subsequent progress has been marked additionally by problems with depression and alcohol dependence for which, in May 2007, he was admitted to the Damascus Unit of the Brisbane Private Hospital for two weeks under the care of Psychiatrist Dr Greg Apel. As well, about a year later, he underwent surgery for incidental problems with colonic diverticulitis, with the sudden development intra-operatively of unexpected complications, for which he required a temporary colostomy for several months. These further events interfered with his rehabilitation programme, although he resumed this after the closure of his colostomy.
Under cross-examination, Mr Clark of counsel took Mr Jamieson to his evidence, that, although he had had occasional injuries, he had had no back problems until the jerry can incident of October 2003. Mr Clark referred him to a record contained in our Tribunal documents, of his Annual Health Assessment that was conducted on 29 July 2003,[7] and the two entries on the second page under the heading of “Action Required”, which read:
Influenza - 06/03 still resolving, nil other sickness
01/03 - lower back pain intermittent[8]
[7] Exhibit R1: T4 at 31-32.
[8] Exhibit R1: T4 at 32.
Mr Clark pointed out that, according to the reports provided by the various doctors to whom Mr Jamieson had been sent for opinion regarding his claims, this was inconsistent with what he had told them—namely that he had not suffered back pain before October 2003. Mr Jamieson's explanation was that the earlier back pain reference was related to influenza he was suffering from at that time; but Mr Clark questioned this, because of the inference in the entry that Mr Jamieson had had intermittent low back pain before January 2003, and therefore, presumably, well before his influenza, which was stated as occurring in June 2003. Mr Jamieson later added that he had back pain shortly after he had completed a 15 km route march carrying a full pack.
Medical Evidence
Mr Jamieson had one expert medical witness, Neurosurgeon Dr Scott Campbell. Dr Campbell provided two reports, dated 15 October 2006[9] and 14 July 2009;[10] he was not called to give evidence at the hearing.
[9] Exhibit R1: T39 at 186-195.
[10] Exhibit A4.
Three doctors, all Orthopaedic Surgeons, gave evidence for the respondent:
Dr John Morris provided one report[11] and gave oral evidence at the hearing;
Dr John Tuffley compiled two reports, dated 2 July 2008[12] and 23 March 2009,[13] as well as providing oral evidence; and
Dr Evan Jamieson prepared a report[14] and gave oral evidence.
[11] Exhibit R1: T15 at 121-130.
[12] Exhibit R4.
[13] Exhibit R5.
[14] Exhibit R1: T50 at 239-249.
Also, two reports from Neurosurgeon Dr Ellison Stephenson were contained in our Tribunal documents, dated 17 January 2005[15] and 20 January 2005.[16] Dr Stephenson was not called to give evidence at the hearing.
[15] Exhibit R1: T10 at 107-108.
[16] Exhibit R1: T11 at 109.
Dr Ellison Stephenson, Neurosurgeon
Dr Stephenson was the first medical specialist to see Mr Jamieson, and was the only treating specialist for his service-related injuries whose records were in evidence. He first saw Mr Jamieson on 14 January 2005, following the lifting bags incident. Dr Stephenson referred to the jerry can incident, and noted that Mr Jamieson said that “he was only able to work 3 days work for some 4 months following that injury”. He also noted that Mr Jamieson told him of the difficulty he had had standing in August 2004 because of his left groin and back pain, his shoulder pain, as well as his left leg pain in the back of his thigh and calf.
On examination, Dr Stephenson found that Mr Jamieson's lumbar spinal movements were restricted, but without localised tenderness to palpation or percussion, and with no neurological signs. Although he opined that Mr Jamieson's left shoulder pain was not related to his neck, he requested that his MRI examination later that day should include the cervical spine as well as the lumbar spine.
On receiving the report of the MRI studies, three days later Dr Stephenson wrote to Dr Neena Singh (who had referred Mr Jamieson) enclosing a copy of the MRI report of the cervical and lumbar spinal examinations. He informed Dr Singh that the lumbar spinal studies had shown no spinal nerve root or spinal cord compression, but that “degenerative changes” were present.[17]
[17] Exhibit R1: T11 at 109.
Dr John Morris, Orthopaedic Surgeon
Dr Morris was the next medical specialist to see Mr Jamieson, at the request of the respondent, on 3 August 2005. He obtained Mr Jamieson's history and recorded that after the lifting bags incident:
At that stage he was experiencing pain in his neck, radiating to the left shoulder and down the lumbar spine into the left buttock. There was no radiation of pain into the legs.
Dr Morris described Mr Jamieson as experiencing lower back pain radiating into the “tailbone and left buttock” but not into the left leg, unable to sit for more than 15 minutes or stand for one hour, and limited by pain to walking 2 km. He experienced tingling at the back of his left leg, sharp pain in his neck radiating to the back of his left shoulder, occasional tingling in the fingers, but no pain on moving his left arm.
In his report, Dr Morris observed that Mr Jamieson had not worked for six months and had stated to him that he was unable to sit still. Dr Morris recorded that Mr Jamieson reported having “experienced no back symptoms or injury prior to October 2003”. His physical examination of Mr Jamieson disclosed normal ranges of neck and left shoulder movements, with mild limitation of his lumbar spinal movements, with no other abnormal findings.
Having also noted the results of his CT and MRI scans, Dr Morris concluded that Mr Jamieson had sustained aggravation of underlying lumbar spinal degenerative changes and a “stand-alone” tissue injury to his neck, both of temporary nature. He concluded that Mr Jamieson had no injury to his left shoulder or left leg. He regarded the lifting bags incident to have had more effect on the injuries than the jerry can incident. He also considered that his back injury may have been further aggravated when giving evidence at the Guardianship and Administration Tribunal in August 2004.[18]
[18] Mr Jamieson’s written statement records that in August 2004, in his civilian occupation as an accountant, he was giving evidence at a hearing of the Guardianship and Administration Tribunal on behalf of a client. He had decided to forego taking his pain relieving medication before his appearance, to avoid compromising his concentration. Unfortunately, during the hearing, the pain in his back and left leg worsened considerably and persisted. This necessitated his admission next morning into the Pindara Private Hospital for 10 days, over which time these pains resolved.
During Dr Morris's evidence-in-chief at the hearing, Mr Clark referred him to the entries in Mr Jamieson's Annual Health Assessment performed on 29 July 2003. Dr Morris remarked that Mr Jamieson's intermittent low back pain prior to January 2003 would be consistent with progression of Mr Jamieson's constitutional lumbar spinal degenerative changes. Under cross-examination, Dr Morris agreed with Mr Jamieson's advocate, Mr Payne, that he would expect him to have had low back pain following a 15 km route march carrying a heavy pack. He confirmed his view expressed in his report that he considered that the effects of Mr Jamieson’s defence related injuries would have ceased within 6 to 12 months.[19]
[19] Exhibit R1: T15 at 127.
Dr Scott Campbell, Neurosurgeon
Mr Jamieson was first seen by Dr Campbell on 15 October 2006 at the request of Mr Jamieson's then solicitors. Dr Campbell’s first report[20] records the jerry can incident, the circumstances of Mr Jamieson’s admission to Pindara Hospital in August 2004, and the lifting bags incident.
[20] Exhibit R1: T39 at 186-195.
Upon physical examination, Dr Campbell observed that Mr Jamieson preferred to stand for most of the interview, had difficulty rising from the sitting position, and walked slowly and cautiously. His lumbar spinal flexion and extension movements were limited to 50% of their normal ranges by pain, and his left lumbar paraspinal muscles were tender. All of his cervical spinal movements were decreased in range by 50 to 60%, with tenderness and guarding over the left cervical paraspinal muscles. His left shoulder flexion and abduction ranges were reduced, and he had “global tenderness” over the left shoulder region.
Dr Campbell diagnosed chronic soft tissue musculo-ligamentous injuries to Mr Jamieson’s cervical and lumbar spines and the left shoulder, and attributed these entirely to the two service-related injury incidents of October 2003 and November 2004. He opined that Mr Jamieson had “no pre-existing conditions or underlying degenerative changes” contributing to these injuries.[21]
[21] Exhibit R1: T39 at 190.
Dr Campbell compiled his second report nearly three years later, on 14 July 2009, after receiving from Mr Jamieson's then solicitors the copies of a number of reports, including those from Drs Jamieson and Tuffley, and various (unspecified) radiological reports. After briefly reviewing Mr Jamieson's history and clinical progress, he addressed a number of questions prepared for him by the solicitors.
With regard to Mr Jamieson's lumbar spinal degenerative changes to L2/3, L3/4, L4/5 and L5/S1,[22] Dr Campbell opined:
Mr William Jamieson's MR scan lumbar spine, dated 14 January 2005, suggested evidence of minor degenerative changes. As there was no history of lower back pain prior to the subject work accidents it was likely the minor degenerative changes were asymptomatic and would have remained asymptomatic had the subject accidents not occurred. Therefore his diagnosis is that of a chronic soft tissue injury to the lumbar spine and not an aggravation of lumbar degeneration.
Mr Jamieson has experienced ongoing chronic lower back pain and stiffness as a result of the subject work accidents and at five to six years post injury, his condition is likely to be permanent.
[22] Exhibit A4 at p 2.
Dr Campbell confirmed his previous diagnosis of chronic soft tissue musculo-ligamentous injury to Mr Jamieson's neck and prognosed that “this condition will be ongoing”.[23] He offered no further opinion about Mr Jamieson’s musculo-ligamentous left shoulder injury, for which he recommended the opinion of an Orthopaedic Surgeon.
[23] Exhibit A4 at p 3.
Dr Campbell concluded his second report by remarking that, although he had studied the contents of both of Dr Tuffley's reports, he had not altered his opinions expressed in his own first report.
Dr Evan Jamieson, Orthopaedic Surgeon
At the request of the respondent, Mr Jamieson was seen by Dr Jamieson on 15 July 2007, and he obtained his history of his two compensable injuries, and of the circumstances requiring admission into Pindara Hospital.
Mr Jamieson described his current complaints of constant lower back pain radiating into his left leg, which was numb and tingling, reduced left groin sensation, and difficulty with most physical activities. He said that he had not worked since September 2004. He had difficulty driving, employed a housekeeper for domestic tasks, and had assistance with his garden and lawns. He no longer played sport or pursued any physical leisure activities. He used Panadol or Panadeine forte daily, and Tramal intermittently.
Upon examination, Dr Jamieson noted that Mr Jamieson stood up frequently to lean on a chair during the consultation; he had localised anterior left neck pain radiating into the left chest; he had very limited range of neck movements during formal examination, but during casual conversation he appeared comfortable turning his head from side to side. Although he demonstrated marked reduced left shoulder voluntary movement, he had no apparent difficulty removing his shirt. His lumbar spinal configuration showed loss of the normal lumbar lordosis, with localised pain over L4 to S1 segments, demonstrating “very little movement” of his lumbar spine. He mounted and dismounted the examination couch with difficulty. He had no abnormal neurological signs.
Dr Jamieson opined that Mr Jamieson's injuries of aggravation of soft tissue injury to the neck and aggravation of lumbar degeneration were stable, permanent, and unlikely to improve above their current level of impairment. He considered that his present lumbar impairment now was entirely due to his non-accepted underlying lumbar degeneration.[24]
[24] Exhibit R1: T50 at 245 and 246.
In his oral evidence to the hearing, when asked if the lumbar spinal changes being at multiple vertebral levels indicated that these were of constitutional degenerative nature, Dr Jamieson agreed, citing the examples of osteoarthritic changes at the lumbar vertebral facet joints. He also agreed that the 29 July 2003 entry in Mr Jamieson's Annual Health Assessment, of his intermittent low back pain before the 2003 injury, was consistent with constitutional degeneration. He added that such changes are to be expected to appear initially in the lumbar spine in the fourth decade of life.
During his cross-examination, Dr Jamieson was taken to part of his answer to question 8 of the Schedule of Questions. This asked if he considered Mr Jamieson's principal cause of incapacity for work was attributable to his service-related injuries of soft tissue musculo-ligamentous injury to the lumbar spine, soft tissue injury to the neck, soft tissue musculo-ligamentous injury to the left shoulder and aggravation of lumbar degeneration at L2/3, L3/4, L4/5 and L5/S1.[25] Mr Payne asked him why he had chosen to answer this with “probably not” rather than “definitely not”; his response was that, on reflection, he “probably would change that to ‘definitely not’”.
[25] Exhibit R1: T50 at 248.
Dr John Tuffley, Orthopaedic Surgeon
As arranged by the respondent's solicitors, Mr Jamieson attended Dr Tuffley's consulting rooms on 13 June 2008. Mr Jamieson gave him his history and described his current complaints of predominantly nocturnal pain involving the left neck and shoulder region, occasional tingling in the left arm and fingers, and ongoing lower back and left calf pain. He reported considerable limitations in activities of daily living and recreational pursuits.
During Mr Jamieson’s physical examination, Dr Tuffley observed significant restriction in all of Mr Jamieson's neck movements, “vague tenderness” in the left side of the neck and anterior left shoulder, and significant restrictions in the ranges of his lumbar spinal movements. He found reduced ranges of various of his active and passive movements of his left shoulder. He also noted the detailed reports of Mr Jamieson’s CT lumbar spine scans of 20 September and 7 December 2004, and MRI examinations of his cervical and lumbar spines of 14 January 2005.
In his first report, in reference to Mr Jamieson's two service-related injuries, Dr Tuffley opined:
I consider that these episodes exacerbated pre existing degenerative changes in the lumbar spine, and that he has recovered from these exacerbations. Any impairment which exists in his lumbar spine is due to a naturally occurring and constitutionally acquired age related degenerative change.[26]
[26] Exhibit R4 at pp 7-8, para 6.1.
As well, in his answers to questions 14 to 16, Dr Tuffley stated that he considered Mr Jamieson not to have any permanently impaired neck function due to the injuries sustained in 2003 and 2004.[27]
[27] Exhibit R4 at p 9, paras 14 to 16.
With regard to Mr Jamieson's shoulder injury, Dr Tuffley wrote:
... he has a marked restriction of active abduction and adduction at the time of recent assessment, but has a normal range of internal rotation, external rotation, and adduction. These findings are inconsistent with any known pathology. Additionally, he indicates his pain is medial to the coracoid process, and this is a most unusual site in which to experience pain which would relate to the glenohumeral joint or acromioclavicular joint, or to the shoulder region in general … There is no objective evidence of a significant shoulder impairment such as muscle wasting, or clinical instability. For this reason, I consider that Mr Jamieson has no permanent impairment in the function of his left shoulder due either to injury or to naturally occurring degenerative change.[28]
[28] Exhibit R4 at p 10.
Dr Tuffley's second report confirmed his opinion with regard to each injury. He did not consider that the service-related effects of the conditions would have incapacitated Mr Jamieson for employment for periods, varying for each injury, for more than one to three weeks.
In his evidence-in-chief at the hearing, Dr Tuffley agreed that the entries in Mr Jamieson's Annual Health Assessment of 29 July 2003 were consistent with pre-existing degenerative lumbar spondylosis. He conceded that Mr Jamieson's colostomy, which had not yet been closed at the time of his examination, may have interfered with Mr Jamieson adequately performing the tasks requested of him on the day he medically examined him.
PERMANENT IMPAIRMENT
We note that the reviewable decision denied liability for permanent impairment because it was not clear that Mr Jamieson’s condition was permanent, there being some medical evidence to suggest rehabilitation might lead to improvement. That submission is no longer pressed. We accept the evidence of Drs Campbell and Jamieson that Mr Jamieson’s back condition was ongoing and stable, thus fulfilling the requirements of permanence.
However, we are unable to conclude, given the medical evidence here, that this permanence is the result of the compensable injuries. Rather, it is the effect of degenerative changes in an ageing back. In that regard, we prefer the evidence of Dr Jamieson. Dr Campbell, as we have noted, was not prepared to acknowledge the possibility of a pre-existing back condition. In view of the medical evidence that Mr Jamieson’s back condition as related to his defence service would resolve in the short term, and our acceptance that Mr Jamieson aggravated his underlying back condition, it cannot be said that Mr Jamieson has suffered an impairment “as a result of the compensable condition”.
INCAPACITY PAYMENTS
The issue here is whether Mr Jamieson has recovered from the compensable injuries, for which he has been paid incapacity payments to the extent the injuries impacted on his army reservist duties and not his civilian employment.
The medical evidence which we have referred to above leads us to the following conclusions.
A. Mr Jamieson's lumbar spine was affected by symptomatic constitutional degenerative changes before the first of his two service-related injuries
Dr Jamieson informed us that it is to be expected that constitutional lumbar spinal degenerative changes will develop naturally in the fourth decade of life. This evidence was not challenged.
We particularly have noted the reports of Mr Jamieson's CT and MRI lumbar spine scans, performed on 7 December 2004 (shortly after the lifting bags incident) and 14 January 2005 respectively. These reports described changes at each of the lumbar spinal intervertebral levels, with the exception of L1/2. Dr Jamieson testified, without challenge, that these multiple level changes were consistent with being due to degeneration; and Dr Stephenson, in his second report to Dr Singh soon after the lifting bags incident, interpreted the MRI changes as being degenerative.
In his second report, Dr Campbell has regarded these MRI scan degenerative changes present as being “asymptomatic” before Mr Jamieson suffered the first of his two service-related injuries. However, it is clear that he had no access to the Annual Health Assessment.[29] We accept this document indicates that, between January 2003 and July 2003, Mr Jamieson had had “intermittent” back pain. Drs Morris and Tuffley both remarked that this would be consistent with him having lumbar spinal degenerative changes at that time.
[29] Exhibit R1: T4 at 32.
In addition, we have noted Dr Jamieson's recording of Mr Jamieson’s comment to him that, at some time before the first of his two service-related injuries, he had consulted a Specialist Spinal Surgeon, Dr Scott-Young, to enquire about possible spinal surgery for complaints that have not been specified in this matter; however, the inference is inescapable that Mr Jamieson was experiencing some form of spinal complaint at some previous stage.
Therefore we find that Mr Jamieson had lumbar spinal degenerative changes which were symptomatic before the first of his accepted service-related injuries.
B. The service-related aggravation of Mr Jamieson's lumbar spinal degenerative changes was temporary, and no longer contributes to his lumbar spinal incapacity
Each of the Orthopaedic Surgeons, although differing in their assessments of the duration of the aggravation of Mr Jamieson's lumbar spinal degenerative changes, gave uncontested evidence to the effect that such aggravation effect has now subsided:
oDr Tuffley estimated that the resulting incapacity would have lasted “for perhaps a week following each episode”.[30]
[30] Exhibit R5 at p 2, para 3.
oDr Morris, in his report and at the hearing, indicated that he would have expected Mr Jamieson's Defence Force employment effects, including the aggravation of the effects of his lumbar spinal degenerative changes, to subside within 6 to 12 months.[31]
[31] Exhibit R1: T15 at 127, para 11.
oAt the time that Dr Jamieson examined Mr Jamieson on 15 July 2007, he opined that lumbar impairment due to lumbar spinal degeneration was 0%.[32]
[32] Exhibit R1: T50 at 247, para 4(c).
The only diagnosis of lumbar injury made by Dr Campbell was of chronic soft tissue musculo-ligamentous injury to the lumbar spine, with no component of aggravation of lumbar spine degenerative changes.[33]
[33] Exhibit R1: T39 at 190.
Accordingly we conclude that the Defence Related aggravation of Mr Jamieson's constitutional lumbar spine degenerative changes has subsided completely.
C. The service-related aggravation of Mr Jamieson's soft tissue musculo-ligamentous injury to his neck was temporary
Again, Dr Morris, both in his report and at the hearing, estimated that Mr Jamieson's Defence Force employment effects, including the aggravation of his soft tissue musculo-ligamentous injury to his neck, would subside within 6 to 12 months.[34]
[34] Exhibit R1: T15 at 127, para 11.
Likewise, in his report and at the hearing, Dr Jamieson opined that, at the time he saw Mr Jamieson, his incapacity for work was no longer attributable to service-related disabilities, including the soft tissue musculo-ligamentous injury to his neck.[35]
[35] Exhibit R1: T50 at 247, para 4(c) and at 248, para 8.
As already noted, at Dr Tuffley's assessment on 13 June 2008, he found that Mr Jamieson had no permanently impaired neck function from his 2003 and 2004 injuries.[36]
[36] Exhibit R4 at p 9, paras 14 to 16.
On the other hand, Dr Campbell has opined that, at the time he reviewed Mr Jamieson for his second report of 14 July 2009 (some five to six years following his injury), it was likely the service-related effects of his condition would be “ongoing”.[37]
[37] Exhibit A4 at p 3, para 4.
Nevertheless, on the balance of the evidence before us, we find that Mr Jamieson no longer has any Defence Force service-related effect from his musculo-ligamentous injury to his neck.
D. Mr Jamieson now has no musculo-ligamentous injury of his left shoulder
At the time that Dr Morris examined Mr Jamieson on 3 August 2005, he found no abnormality in his left shoulder.[38]
Similarly, at Dr Jamieson's examination of Mr Jamieson on 5 July 2007, he considered that incapacity for work was no longer attributable to his service-related disabilities, including his soft tissue musculo-ligamentous injury to the left shoulder.
When Dr Tuffley examined Mr Jamieson on 13 June 2008, he found no evidence of injury of his left shoulder.[39]
In Dr Campbell's second report, he deferred opinion regarding Mr Jamieson’s left shoulder injury to an Orthopaedic Surgeon.
Consequently, we now find that Mr Jamieson has no service-related injury of his left shoulder.
[38] Exhibit R1: T15 at 124, paras 1 and 2.
[39] Exhibit R4 at p 10.
CLAIM FOR PSYCHIATRIC CONDITIONS
The Act provides for a definition of service injury at s 27. Ultimately a finding that a condition is a service injury requires the evidence must satisfy connections set out in relevant Statements of Principles.
The factor in Statement of Principles No 28 of 2008 for Depressive Disorder (as amended) that Mr Jamieson relied upon was factor 6(viii), which identifies “having chronic pain of at least six months duration at the time of the clinical onset of depressive disorder” as providing the necessary link, making it more probable than not that Mr Jamieson’s depressive disorder was related to his Army service through his accepted injuries.
However we note the parties agreement that to succeed in this claim, any chronic pain which Mr Jamieson suffers needed to be related to service injury and not to pain he experiences as a result of the degenerative conditions in his back neck and shoulders. As we have decided that Mr Jamieson recovered from the aggravation of his degenerative injury arising from the jerry can incident and the lifting bags incident, he cannot succeed on a claim based on chronic pain. This means that the claim for alcohol dependence also fails, as the connection in that instance under the relevant Statement of Principles was by way of “having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence”, where the clinically significant psychiatric condition is itself related to service. This is not the case here and accordingly we must affirm the decision under review.
DECISION
The Tribunal affirms the reviewable decisions.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member and Associate Professor J B Morley RFD, Member.
Signed: ........................[Sgd].............................................
Mátyás Kochárdy, Associate
Dates of Hearing 27 & 28 September 2010
Date of Decision 12 October 2010
Advocate for the Applicant Mr N Payne
Counsel for the Respondent Mr CJ Clark
Solicitor for the Respondent DLA Phillips Fox
0
0
0