Jones and Comcare
[2005] AATA 65
•21 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 65
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q1999/883
GENERAL ADMINISTRATIVE DIVISION ) Q2003/511 Re RODNEY PATON JONES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President Don Muller
Dr. K.P. Kennedy, OBE, Member
Date21 January 2005
PlaceBrisbane
Decision The Tribunal affirms the decisions that:
1. On and from 25 March 1999, Rodney Paton Jones no longer suffers from the condition cervical muscular strain and that he suffers from degeneration of the cervical spine which condition has not arisen out of nor in the course of his employment in the Royal Australian Navy; and
2. Rodney Paton Jones does not suffer from a psychiatric illness as a sequela to his neck condition, nor as a result of his Naval service.
...............SIGNED.........................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
COMPENSATION – effects of cervical muscular strain ceased – degeneration of cervical spine did not arise out of nor in the course of Naval service – any psychiatric illness not a sequela to neck condition – nor as a result of naval service – decision affirmed
REASONS FOR DECISION
Deputy President Don Muller 1. Rodney Paton Jones claims that he suffers from a permanent neck disability arising out of or in the course of his service in the Royal Australian Navy. He claims that he injured his neck whilst playing rugby in a match sanctioned by the Navy, on 20 June 1984.
2. Mr. Jones also claims that he suffers from a psychiatric illness, anxiety disorder, depressive disorder and panic attacks, as a result of the pain associated with his neck injury.
3. Mr. Jones’ claims for compensation for neck injury and psychiatric illness have both been rejected on the following grounds:
(a)The neck injury was originally a muscular strain which has long since resolved;
(b)Any current neck problems are due to natural degeneration which has nothing to do with Mr. Jones’ Naval service; and
(c)If Mr. Jones has a psychiatric illness, it is due to his life experiences which occurred long after he left the Navy.
4. Mr. Jones seeks a review of both decisions to reject his claims for compensation.
5. Mr. Jones gave evidence by way of statements, oral evidence and answers in cross-examination. His evidence was to the following effect:
(a)He was born on 10 March 1963.
(b)He joined the Royal Australian Navy in March 1981. He became a cook.
(c)In mid-1984 he was serving on the HMAS Vampire, which at that time was docked at Newcastle.
(d)He was a member of the base rugby union team which travelled approximately 400kms south to HMAS Nowra to compete in a Navy rugby carnival, the Mons Cup.
(e)At about 10.00am on 20 June 1984, he was playing in the final of the Mons Cup when a scrum collapsed, with him caught at the bottom of the collapsed scrum. He could not move and he was in too much pain to call out.
(f)He was taken by ambulance to the hospital at the Nowra Naval Base where he was held for about six hours. His neck and thoracic area were x-rayed but nothing abnormal was detected.
(g)Later, on the same day, he returned to Newcastle on the team bus, arriving there that night. He was provided with no support for his neck.
(h)He was assessed by a medical officer as fit to return to full duties, with physiotherapy two to three times per week for six months. He was advised not to wear a supporting collar because it would “weaken his neck muscles”.
(i)The Vampire was doing coastal runs between Cairns and Darwin. His job was to prepare vegetables. He was not officially put on to “light duties”, but his supervising cook gave him light work because of his neck problems.
(j)He continued to complain of headaches and pain in his neck. In late 1984 or early 1985 he was transferred to HMAS Moreton, a shore base at New Farm, still as a cook.
(k)He came to believe that he would never be fit for service at sea. As a consequence he applied for discharge in 1985.
(l)Prior to discharge from the Navy in October 1985 he underwent a medical examination in August 1985. Although the medical examiner found that his neck and spinal system were normal, Mr. Jones still considered that he had an injury.
(m)After discharge from the Navy he obtained work as a deck-hand on a prawn trawler, owned by a friend. He also worked as a cook on Daydream and Hamilton Islands.
(n)In about 1987 he bought his own prawn trawler which he operated until he sold it in 1998.
(o)He still had neck pain. He took pain killers and alcohol to relieve the pain. He had physiotherapy from time to time.
(p)When operating the prawn trawler he mainly drove the boat, whilst hired hands did the heavier work.
(q)In 1993 or 1994, his wife left him with two young children to look after. He then began to have trouble finding someone to look after the children while he was at sea. His mother initially looked after his children but she did not want to do so on a permanent basis.
(r)He was forced to hire skippers from time to time to take his trawler to sea, whilst he looked after his children.
(s)He had two falls during the mid 1990s in which he hurt his neck and back. They were:
(i)On 28 December 1995, he slipped over and jarred his neck during a family re-union outing at Somerset Dam.
(ii)In April or May 1996, he slipped over while walking from his boat.
(t)He came to believe that the skippers he had to hire from time to time were stealing prawns from the catch. In 1998 he decided to sell the trawler to look after his children full-time. He applied for, and received, a Centrelink sole parent pension.
(u)After he sold the trawler he became depressed about his pain and the effect it was having on his life. He experienced panic attacks. He also drank alcohol to excess.
(v)He also had some difficulty in coping with a girlfriend who stole $1,000.00 from him.
(w)In late 2003 he settled in Giru, a small town in North Queensland. He found it to be an inexpensive place to live. He has unsuccessfully applied for work locally.
(x)He now “gets on with life”. He has made friends at the bowls club. He enjoys fishing.
MEDICAL EVIDENCE
6. At the hearing the Tribunal had before it the various medical reports contained in Mr. Jones’ Naval records, plus:
·24 September 1986 Dr. Mark Byrne, Orthopaedic Surgeon
·24 February 1992 Dr. Mark Byrne, Orthopaedic Surgeon
·23 July 1992 Dr. John Walters, Orthopaedic Surgeon
·25 March 1999 Dr. John Morris, Orthopaedic Surgeon
·2 July 1999 Dr. John Pentis, Orthopaedic Surgeon
·3 February 2000 Dr. Peter Landy, Neurologist
·11 December 2000 Dr. Ben Steinberg, Consultant Psychiatrist
·21 February 2002 Dr. Bruce Martin, Orthopaedic Surgeon
·9 June 2004 Dr. Jill Reddan, Consultant Psychiatrist
7. Mr. Jones had his thoracic spine and cervical spine x-rayed on the day of his rugby injury on 20 June 1984. The report says “no bone injury could be detected”.
8. When he was stationed at HMAS Moreton he had his cervical spine x-rayed on 3 May 1985. The report says: “No significant abnormality can be seen, apart from a slight scoliosis convex right”.
9. Mr. Jones was examined for the purpose of a medico-legal report by Dr. Mark Byrne, Orthopaedic Surgeon, in September 1986. Dr. Byrne reported:
“On examination, I thought he had a full and painless range of neck movements without spasm or specific tenderness. I could find no neurological abnormalities, ….. (x-rays) show some early degenerative changes at C5-6 with some anterior osteophytes and some disc space narrowing seen on the flexion view. I am not sure specifically whether his symptoms relate to this x ray abnormality although I note that the radiation of his pain is more towards the ® shoulder. I note with interest that only this week he has started work on a prawn trawler and apparently has not been made significantly worse by the experience.”
10. Mr. Jones was treated from time to time by his general practitioner, Dr. Day, from early 1993 onwards. Dr. Day’s consultation notes were tendered and marked exhibit 7. From 1993 to 1995, Mr. Jones was only treated on one occasion for neck pain. After his accident in December 1995, he had numerous consultations with Dr. Day for neck pain.
11. According to Dr. Day’s notes, Mr. Jones did not suffer from stress or panic attacks until 1998.
12. In cross-examination Mr. Jones conceded that apart from his visits to Dr. Day, he had not sought treatment for his neck since leaving the Navy. All visits to the various specialists were for the purpose of obtaining medico-legal reports.
13. Dr. Bruce Martin, specialist orthopaedic surgeon, provided a written report and he also gave oral evidence. He examined Mr. Jones in February 2000. Dr. Martin said that it was readily apparent at the time of his clinical assessment that Mr. Jones was voluntarily attempting to convey the impression of significant functional impairment with respect to his neck. The apparent limited range of movement at the time was not compatible with other objective medical evidence. He opined that Mr. Jones does not suffer any significant condition or pathology affecting his neck. Dr. Martin noted that Mr. Jones had been returned to normal duties after the 1984 incident and he would have regarded the injury to have been of musculo-ligamentous origin and therefore a soft tissue injury. He had also noted that in a report of Dr. Byrne, Dr. Byrne had recorded a full and painless range of neck movements without spasm or specific tenderness. About that time he had also had a normal myelogram which would have excluded any disc protrusion or nerve compression. Dr. Martin said that during his examination of Mr. Jones, Mr. Jones had held his neck in a rigid posture in an exaggerated way. Dr. Martin did not accept the history of 20 year neck pain having regard to the overall history.
14. Dr. John Morris, orthopaedic surgeon, examined Mr. Jones in March 1999. Dr. Morris provided a written report and gave oral evidence. In his report, Dr. Morris wrote that Mr. Jones had been difficult to examine. There had been inconsistency in that he had at one stage claimed not to be able to bend forward whereas later he was able to bend quite easily. Similarly, while he had imitations of neck movement during the examination, he used his neck normally as he left his rooms. Dr. Morris believed that Mr. Jones had some degenerative changes of the spine but Dr. Morris believed that Mr. Jones’ disability was not as great as he had made out. Dr. Morris opined that the original muscle problem was not the cause of Mr. Jones’ present condition and that military employment did not contribute in a material degree to the incapacity. Dr. Morris’ oral evidence confirmed his written report.
15. Dr. Peter Landy, neurologist, saw Mr. Jones in February 2000. In his written report of 3 February 2000, Dr. Landy opined that the type of injury suffered in 1984 had suggested a soft tissue injury to Mr. Jones’ neck which would usually resolve within three months. He could find no evidence of any neurological condition. In his oral evidence by telephone, Dr. Landy stated that on formal testing, Mr. Jones appeared to have limited movement in his neck and the neck movements were jerky. When distracted however, neck movements were much freer and the range of movement was good.
16. The Section 37 documents also included reports by orthopaedic surgeon, Dr. John Walters who had recorded in 1992 that on initial testing, neck movements were about 80% of normal but with encouragement a full range of movement was possible. On testing there was some global weakness of the right upper limb but there was no muscle wasting and the hands were normally calloused consistent with a manual worker. Dr. Walters stated that this observation suggested a high level of function of the right upper limb and he doubted that there was any significant disability that could be confidently attributed to the 1984 football injury.
17. Dr. John Pentis examined Mr. Jones in 1999 and prepared a written report. He also gave oral evidence. In his 1999 report, Dr. Pentis had recorded that the range of movement of the spine was limited in all directions. He had noted some tenderness of the musculature of the neck. He said that Mr. Jones appeared to have injured his neck in the stated scrum. In that report he commented on some degeneration of the cervical spine which he believed was more than likely to be due to the 1984 accident.
18. During cross-examination, Dr. Pentis however changed his position somewhat. He agreed that a soft tissue injury would generally settle within a few months. He further agreed that the degenerative changes noted would be consistent with age alone. He also agreed that the changes noted had involved a few levels in the cervical spine and that trauma tended to more often affect one level more than others. Dr. Pentis said that symptoms described by Mr. Jones involving right foot, whole of left side, right side of face could not be explained by a cervical disc lesion. When the opinions of the other orthopaedic surgeons were brought to the attention of Dr. Pentis, Dr. Pentis said that in his earlier report he had not had a full history and had given Mr. Jones the benefit of the doubt.
19. Dr. Ben Steinberg, specialist psychiatrist, saw Mr. Jones in December 2000. He provided a written report dated 11 December 2000, and he gave oral evidence by telephone. In his written report, Dr. Steinberg had recorded that Mr. Jones had told him of panic attacks when driving and also that he suffered from depression as well as having trouble sleeping and being lethargic. Also he had a short concentration span. These were the only nervous symptoms recorded by Dr. Steinberg. As regards mental state examination, Dr. Steinberg recorded that Mr. Jones was co-operative and that his concentration and attention were good. He was nervous and anxious. There were no perceptual changes and no cognitive deficits. On the basis of the nervous symptoms recorded by Dr. Steinberg, he opined that they fulfilled the criteria of Anxiety Disorder due to sequelae of the neck injury.
20. When cross-examined, Dr. Steinberg agreed that other events such as family events and job loss, for example, could also cause depression. He also agreed that if the anxiety episodes had occurred only a short time before the Applicant had seen Dr. Steinberg, then there would be no connection between the 1984 injury and the anxiety syndrome. He agreed that it was almost impossible to say that any one factor was more responsible for the anxiety syndrome than another. In reply to a question from the Tribunal, Dr. Steinberg agreed that he could not be certain about any connection between the neck and the anxiety.
21. The second psychiatrist to give evidence was Dr. Jill Reddan. Dr. Reddan had prepared two quite comprehensive written reports, having seen the Applicant in January 2002 and more recently in June 2004. In her most recent report, Dr. Reddan stated that Mr. Jones had informed her that he experienced pains in his neck on two or three days a week. Mr. Jones had intermittently experienced depression and irritability associated with pain and with other circumstances as well. Dr. Reddan opined that there was no evidence that his emotional reaction to his pain had been in excess of what could be expected or been particularly pathological. Dr. Reddan opined that the history did not reveal that he had developed a psychiatric condition materially contributed to by his employment in the Australian Navy.
22. In her 2002 report, Dr. Reddan had detailed a number of other stressors in the life of Mr. Jones. She also referred to the panic attacks which had first occurred years after he left the Navy and had no link to the neck pain. She could find no evidence that he had a psychiatric disorder arising from his neck condition or arising out of his service in the Navy. At the hearing, Dr. Reddan gave oral evidence by telephone. She confirmed that she still held to the opinions recorded in her written reports. She said that she believed Mr. Jones had a reduced ability to cope with physical problems but that he did not have a psychiatric illness.
REVIEW OF MEDICAL EVIDENCE
23. The Tribunal notes that on the day of the injury Mr. Jones was allowed to travel from Nowra to Newcastle by bus and that the medical officer examining him had considered him fit to resume normal duties. In addition when examined by Dr. Byrne in 1986, two years after the incident, he was found to have full neck movements. We also note that x-rays taken in 1984 and 1985 showed no abnormality, other than a slight scoliosis.
24. Dr. Martin did not accept that Mr. Jones suffers any significant condition or pathology affecting his neck. Dr. Landy could find no evidence of any neurological condition in spite of Mr. Jones having reported various neurological symptoms, many of which could not be explained on the basis of neck pathology. Dr. Morris opined that the original muscular injury was not the cause of his present condition and that his military employment did not contribute in a material way to his present condition. Similar views had been expressed in the written reports of Dr. Byrne and Dr. Walters.
25. The reports of various orthopaedic surgeons and the neurologist in subsequent years indicate that Mr. Jones had on initial examination in each case demonstrated more limited neck movements than he was later shown to be capable of performing. They believed that he was not responding to their examinations in an honest manner.
26. The only orthopaedic surgeon who reported limitation of movement of the spine in all directions and who did not raise doubts about the accuracy of that assessment was Dr. Pentis. Dr. Pentis had originally stated in his 1999 written report, that Mr. Jones appeared to have injured his neck in the scrum in 1984 and that he had believed the degenerative spine changes to be more than likely due to that incident. During cross examination however, Dr. Pentis agreed that the minor changes in the cervical spine would be consistent with age alone. While he had originally linked the changes with the 1984 incident, he also acknowledged during cross examination that he had not taken a full history but had given Mr. Jones the benefit of the doubt.
27. In addition to the orthopaedic reports, the Tribunal also notes that Mr. Jones, after leaving the Navy, worked as a deckhand on a trawler and worked as a cook at tourist resorts before purchasing his own trawler on which he subsequently worked for about 10 years. The Tribunal does not accept that he would have purchased his own trawler if his neck had been as troublesome as he states during his initial work as a deckhand. There was also the evidence that there had been only one visit to his general medical practitioner in relation to his neck prior to his fall in 1995. There have been several visits concerning his neck since that time.
28. The Tribunal accepts that Mr. Jones has some neck disability due to minor degenerative changes. However, the Tribunal accepts the overwhelming evidence of the orthopaedic specialists who said that the degree of disability is not as severe as Mr. Jones has claimed; that the original injury was musculo-ligamentous which would have resolved within months of the injury; and that Mr. Jones’ current neck problems are not connected to the 1984 rugby incident.
29. With regard to the claimed psychiatric condition arising out of the neck injury, the Tribunal notes the reports of Dr. Steinberg and Dr. Reddan. We also note that in his evidence, Mr. Jones described himself as fairly happy at present but said that he becomes depressed when times are tough. In his written report, Dr. Steinberg opined that Mr. Jones had an anxiety disorder due to sequelae of the neck injury. The report of Dr. Steinberg appeared rather superficial however and in the opinion of the Tribunal lacked sufficient detail to justify the link he had made. When cross examined, Dr. Steinberg agreed that other events could cause depression and that it was almost impossible to say that any one factor was more responsible for the anxiety than any other. In reply to a question from the Tribunal, Dr. Steinberg said that he could not be certain of any connection between the neck injury and the anxiety.
30. Dr. Reddan on the other hand had provided a very comprehensive report. She detailed a number of other stressors in the life of Mr. Jones. She could find no evidence that he had a psychiatric disorder arising from his neck condition or arising out of his service in the Navy. She doubted that he has a psychiatric illness. The Tribunal finds the opinion of Dr. Reddan to be more persuasive than that of Dr. Steinberg, but also notes that Dr. Steinberg is no longer confident of a link between the anxiety and the neck problem.
31. For the reasons indicated above, the Tribunal finds that there is no connection between the musculo-ligamentous injury suffered by Mr. Jones in 1984 and his present neck condition. It follows that there is therefore no link between the claimed psychiatric condition and his Naval service.
32. The Tribunal therefore affirms the two decisions under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller and Dr. K.P. Kennedy, Member.
Signed: .....................................................................................
B. Hitchcock, Personal AssistantDate/s of Hearing 6,7 October 2004
Date of Decision 21 January 2005
Counsel for the Applicant Ms. B. Carter-Nicoll
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Sparke Helmore
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