Jye Csont and Military Rehabilitation and Compensation Commission
[2013] AATA 215
•11 April 2013
[2013] AATA 215
Division VETERANS' APPEALS DIVISION File Number
2012/2104
Re
Jye Csont
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate 11 April 2013 Place Perth The decision under review is affirmed.
.........................[sgd]...............................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – military compensation – applicant served in Australian Army from March 2007 to June 2008 – applicant sustained service injuries/service diseases – compensation payable to applicant for service injuries/service diseases – applicant suffered permanent impairment resulting from service injuries/service diseases – degree of whole person permanent impairment – combined impairment rating – lifestyle rating – decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth), s 23(1), s 67(1) and s 68
Guide to Determining Impairment and Compensation (Instrument No M9 of 2005), Tables 3.2.2, 3.3.1, 3.3.2, 3.4.1, 3.6.1, 4.1–4.8, 18.1 and 22.1–22.4
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member11 April 2013
Introduction
Jye Csont (“the applicant”), who is aged 25 years, enlisted in the Australian Army on 26 March 2007 and was discharged on 6 June 2008.
Following claims by the applicant for compensation under the Military Rehabilitation and Compensation Act 2004 (Cth) (“MRC Act”), determinations were made under s 23(1) of that Act accepting liability for the following service injuries/service diseases:
·bilateral medial tibial stress syndrome;
·thoracic strain;
·lumbar spondylosis with sciatica; and
·adjustment disorder (“the compensable conditions”).
On 21 October 2011 a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) made a determination under the MRC Act that the applicant had suffered a whole person permanent impairment as a result of the compensable conditions and that he was entitled to permanent impairment compensation with effect on and from 31 August 2011. The delegate calculated the amount of compensation payable to the applicant on the basis of a combined impairment rating of 24 and a lifestyle effects rating of 2, in accordance with the “Guide to the Assessment of Rates of Veterans’ Pension V, Modified” [sic].
On 17 April 2012 a Review Officer and delegate of the respondent made a “reviewable determination” under s 350(2) of the MRC Act confirming the abovementioned determination of 21 October 2011.
On 25 May 2012 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable determination of 17 April 2012.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T60, pp 1–446) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1–A3 tendered by the applicant;
·Exhibit R1 tendered by the respondent;
·the oral evidence of the applicant, Dr John Bell and Dr Jonathon Spear.
The Applicant’s Evidence
The applicant tendered in evidence three (undated) handwritten statements by him (Exhibits A1, A2 and A3) and he affirmed that their contents are true and correct.
Exhibit A1 comprises the applicant’s response to a request by the respondent’s solicitors, by letter dated 17 July 2012 (Exhibit R1), for the following information:
“ 1 ‘Bilateral medial tibial stress syndrome’ (the lower leg condition)
1.1. Details of the symptoms suffered to the present date;
1.2 Details of the treatment undertaken the [sic] present date;
1.3Details of the impairment (ie restrictions) which you say that you suffer from as a result of the condition; and
1.4Details of any previous lower leg injuries or symptoms suffered prior to enlistment.
2‘Thoracic sprain, lumbar spondylosis with sciatica’ (the back conditions)
2.1Details of the symptoms suffered from [sic] to the present date;
2.2Details of the treatment undertaken to the present date;
2.3Details of the impairment (ie restrictions) which you say that you suffer from as a result of the back conditions; and
2.4Details of any previous back injuries or symptoms suffered prior to enlistment.
3‘Adjustment disorder’ (the psychological condition)
3.1Details of the symptoms suffered to the present date;
3.2Details of the treatment undertaken to the present date;
3.3Details of the impairment (ie restrictions) which you say that you suffer from as a result of the psychological condition;
3.4Details of any previous psychological conditions or symptoms suffered prior to enlistment.
4Employment
4.1Details of your employment history, both prior to and since your discharge from the military.
5Treating practitioners
5.1Please provide a list of past and present treating practitioners who have treated you for your conditions and their contact details.
6Other Issues
6.1At the conference you raised issues concerning the medical appointments and reports of Dr Spear and Dr Bell.
6.2We invite you to provide comment on the specific concerns that you have regarding the doctors.
…”
The contents of the applicant’s response are as follows:
“1.1 Extreme pain as if my shins are going to snap in half and pinching on nerves or muscle.
1.2Prescription medication for pain relief and ice packs to help repair them!
1.3Unable to walk brisk pace or even keep up with 2yr old son. Standing can sometimes be unbearable! Feeling weak in both legs.
1.4No leg injuries prior to enlistment.
2.1Extreme/tense pain, sharp/pinching, uncomfortable feel though my back is 80 years old. Limited movement.
2.22 x nerve root sleeve injections, 1 x facet joint injection, physio, hydro and to many different medications to count. Rest.
2.3Range of movement, can only pick up small weights, can’t look after my son properly! Running – jumping – climbing all no go zones!
2.4Very small crack in upper right vertabre, but was all good for enlistment.
3.1Having a hard time adjusting to how I have been treated by the referring doctors. No mental issues! (Assumming)
3.2Headspace 2009 – current
3.3Mentally suffering for keeping my chin up for my family! Suicidal now & then from pain.
3.4None.
4.1Workforce Equipment Hire (Kennards) – Driver/Servicemen. ADF (Rainf) Rifleman, WA Cutting Services – machine operator!
5.1Fremantle Hospital, Sir Charles Gardiner Hospital, Dr Carmen Quadros, Physio Raymond Kas? South Freo Physio. I’ve seen way to many people in past 2 years, hard to keep in mind. But most treating practitioners have already been summonsed. Available upon request!
6.1/6.2Dr Spear & Dr Bell were rude and inconsiderate! They did not pay attention to what I was saying because all the dates I gave are wrong. Dr Bells physical examination went like this. I got up, tried touching my toes, answer a few yes and no questions and the examination was over in 15 mins, spent more time in waiting room then in his office! Dr Spear I thought was very unproffessional. The very first thing he asked was and I quote ‘what would you like me to say/write’ both were very unproffessional and I feel sorry for all their clients! Both reports are at least 70% wrong! Would love to go through reports with anyone!” [sic]
Exhibit A2 comprises a detailed criticism by the applicant of Dr Bell’s examination of him on 30 August 2011 and of Dr Bell’s subsequent report dated 22 September 2011 and medical impairment assessment of the applicant’s compensable physical conditions, namely, bilateral medial tibial stress syndrome, thoracic strain and lumbar spondylosis with sciatica (T43 – see paragraphs 12– 13 below). It is unnecessary to set out the contents of Exhibit A2 in these reasons.
Exhibit A3 comprises a detailed criticism by the applicant of Dr Spear’s examination of him on 15 September 2011 and of Dr Spear’s subsequent report dated 22 September 2011 and medical impairment assessment of the applicant’s compensable mental condition, namely, adjustment disorder (T44 – see paragraphs 15–16 below). It is unnecessary to set out the contents of Exhibit A3 in these reasons.
The Relevant Medical Evidence
Dr John Bell
Dr Bell, Consultant Orthopaedic Surgeon, confirmed that he had examined the applicant, at the request of the Department of Veterans’ Affairs (“DVA”), on 30 August 2011 and that he had subsequently prepared a report, dated 22 September 2011, and completed medical impairment assessment forms (T43).
Dr Bell’s report, which is addressed to the DVA, states as follows:
“ …
HISTORY:
Occupation/Work Duties:
Mr Csont was born in New South Wales and moved to Western Australia around the age of 8 years. He left school around the age of 15 years doing the Fremantle fast track until the end of year 10.
13 months- He worked as a service driver for Kennards Hire driving utes, and doing deliveries since leaving school.
14 months- He enlisted in the Australian Army from 27 [sic] March 2007 until 7 [sic] June 2008. He was a private and a rifleman. He was not on any overseas service during that 14 months.
15 months - He worked as a machine operator for R [sic] A Cutting Services in Malaga. The work involved cutting steel. He has not worked since April 2010.
Mechanism of Alleged Injury/Sequence of Events:
He confirms that his bilateral medial tibial stress problems occurred with initial Army training mostly at Kapooka and then it became worse in Singleton. He says it has not been much of a problem since leaving the Army as his low back pain problems counteract the tibial stress. The shin splints are not a problem as he is unable to do any significant exercise these days.
He confirms that his mid-back and low back have been a problem ever since he did a massive training exercise on 14 August 2007. He says he was carrying a 55kg pack. He had to walk back for 2½ hours. His mid-back started over the initial months and after six months the pain settled more in the low back region. He says because of the problems he became extremely depressed and hit the alcohol pretty hard. He says the low back is now mainly the problem with all the pain down the left lower limb. It involves the low back and both legs.
Treatment Received:
Treatment has been with two injections in his spine which have not helped. One helped for about four days and the other helped for seven days and it was not any long term help. He says he is hoping to have another one soon. Medications help and he takes opiate OxyContin 80mg every second day. He says he really needs to take two a day. Physiotherapy made him worse with the first bout of physio and now he is doing more physio and it is helping.
Current Status:
Low back pain continues both in the mid and the lower back mostly on the left side and it involves both hips and both buttocks and the left hamstring. He points to the front of his abdomen and up to his shoulder blades as he speaks. Mainly it is in the left lower limb to the knee and occasionally it even goes to the left foot. The aches in the low back get worse in the cold and when coughing. It is really bad between 8:00pm and 8:00am. It is a burning with constant muscle spasms. It is like he is being tasered. The worst ever was in late 2010 and early 2011. He says he was on crutches at times and could hardly move. He was in Fremantle Hospital for about a week during November 2010 and again for two days in April 2011 because the pain was so severe.
Present Work Duties:
He has not worked since April 2010 and there are no plans to return to the workforce at this stage.
Present Activities:
He tells me that he cannot do much at all now. He tells me that he was playing soccer with a club before March 2007 and he has not been able to play soccer or any footie since. He used to like playing basketball and running prior to March 2007 and he has not been able to do any of that since because of his low back pain.
Past Medical History:
He tells me that he has been in good health apart from his low back pain problems.
Personal/Social History:
He is in a de facto relationship and was accompanied to my office by his partner, Monica. They have a 14 month old child who is well. They have been living at their present address … for the last eight months.
He smokes two cigarettes a day.
PHYSICAL EXAMINATION:
Mr Csont presented with the above history and described his continuing low back difficulties. His gait pattern indicated a limp which varied at times. He indicated great pain in his low back at all times and with all activities. His height was 173 cm and he is thin at 52 kg and his abdominal girth is 69 cm. General conditioning was good. Muscle tone on his trunk and on all limbs is reasonably good. His limp was significant and he was using a walking stick and the limp did vary at different times.
Head/Neck:
He had a full range of movement of his cervical spine with no discomfort and no tenderness. He indicated some pain in his low back with neck movements.
Upper Limbs/Shoulder Girdles:
He had a full range of movement of his shoulders, elbows and wrists with no discomfort and no tenderness.
Back/Spine:
Range of movement of his lumbosacral spine he indicated to be about 70% of normal with more discomfort on extension and bending to the left. He indicated tenderness to even light touch diffusely around the lower thoracic and entire lumbar spine from T10 down to S1 over the spinous processes and the paraspinal muscles and the left sacroiliac joint and left upper buttock. Abdominal muscle tone was good. He was able to walk on his heels and squat and did so with great discomfort in the low back region.
Lower Limbs:
He had a full range of movement of his hips, knees and ankle joints with no discomfort and no tenderness. Reflexes were brisk and equal. He indicated lack of feeling diffusely in his left lower limb and this did not correspond to any dermatome. There were no positive neurological signs in the upper or lower limbs.
INVESTIGATIONS:
Plain X-Rays – Thoracic Spine (14 August 2007): were within normal limits.
Plain X-Rays – Both Lower Legs (11 October 2007): showed no abnormality.
Technetium Bone Scan (11 October 2007): showed low grade stress injury of both tibias more marked on the right.
CT – Thoracic Spine (8 April 2008): showed no abnormality.
CT – Lumbosacral Spine (3 December 2009): showed a left lateral and far lateral L4/5 disc bulge possibly affecting the left L4 nerve root.
CT Imaging was used at the time of left L4 nerve root sleeve injection with steroid (3 February 2010).
MRI – Lumbosacral Spine (7 April 2011): showed a degenerate disc at L4/5 with a left foraminal protrusion which abuts the exiting L4 nerve root.
CT was used at the time of left L4 nerve root sleeve injection with steroid (9 April 2010).
Plain X-Rays – Lumbosacral Spine (12 May 2011): showed no significant abnormality.
Technetium Bone Scan (9 September 2011): showed no significant musculoskeletal abnormality.
The MRI images of 7 April 2011 did accompany him, and I viewed those images.
SUMMARY AND ASSESSMENT:
In summary, Mr Csont was involved in heavy duty activity with his Army training between March 2007 and June 2008. It appears that his low back pain problems have worsened over years since then. He is on opiate medication.
Assessment of Health Problems:
1.Low back pain. Facet joint inflammation over the lowest three mobile segments. Possibly also some inflammation at the L4/5 disc. No frank radiculopathy evident. Mild grade.
2.Smoker.
3.On opiate medication.
I have discussed Mr Csont’s case with my colleague Dr J Spear on 15 September 2011. He has also assessed Mr Csont on 15 September 2011 to gain an understanding of the broader medical complexities affecting Mr Csont.
I have taken Dr J Spear’s medical opinion into consideration and will now answer your questions accordingly.
In response to the specific questions in your letter dated 26 July 2011, my answers are as follows:
1.Can Jye Csont’s accepted condition(s) currently be classed as stable, permanent and not likely to improve above the current level of impairment?
Yes, Mr Csont’s accepted conditions can currently be classed as stable, permanent and not likely to improve above the current level of impairment.
If the answer is yes, please complete the attached impairment forms. In completing these forms and writing your report could you also please objectively assess Jye Csont’s ability to perform the indication [sic] functions and comment on your assessing method and observations.
If the answer is yes, could you please advise that date when Jye Csont’s accepted condition(s) became stable and permanent?
The date that his accepted conditions became stable and permanent can be taken as today’s date, 30 August 2011.
If the answer is no, please provide your opinion of when the condition should be reviewed.
2.Has Jye Csont undergone all reasonable medical treatment?
Yes, Mr Csont has undergone all reasonable medical treatment.
Is there any treatment that, in your opinion, would decrease the level of impairment Jye Csont currently suffers? If the answer is yes, please provide details of treatment.
3.Please include in your report any additional information you consider relevant.
His bilateral medial tibial stress syndrome was only a problem during his initial training days at Kapooka and later in Singleton, New South Wales. It is not a problem at all now. He feels his low back pain problems counteract the pain and there is no shin splint problem over recent months. The aches in his shins have settled.
As far as his low back pain problems are concerned, there is no significant history or physical sign of any radicular element and the pain in his lower limb corresponds to referred pain. Furthermore as stated under ‘Physical examination’ his general conditioning really is very good and his presentation on a walking stick is somewhat bizarre. He presents with an intense degree of disease conviction.
…” (original emphasis)
Dr Bell’s medical impairment assessments in relation to the applicant’s compensable physical conditions are as follows:
·bilateral medial tibial stress syndrome – “nil”;
·thoracic strain and lumbar spondylosis with sciatica – “about 25% loss of range of thoracolumbar spinal movement”;
·back symptoms when standing, sitting, lying down – “constant low back pain”.
Dr Jonathon Spear
Dr Spear, Consultant Psychiatrist, confirmed that he had examined the applicant, at the request of the DVA, on 15 September 2011 and that he had subsequently prepared a report, dated 22 September 2011, and completed medical impairment assessment forms (T44).
Dr Spear’s report, which is addressed to the DVA, as amended by him in his oral evidence, states as follows:
“ …
FILE MATERIAL AVAILABLE:
The following file material was made available to me:
1.Dr John Bell, orthopaedic surgeon, 4 September [sic] 2011.
2.Dr John Laugharne, consultant psychiatrist, 29 June 2011.
3.Psychology military record.
HISTORY:
Originating Complaints:
Mr Csont has made a claim for Adjustment Disorder. He has a rejected claim for sensorineural hearing loss, scoliosis T4 to T5 and dislocation of right hip.
The documentation indicates the onset of low back pain on 14 August 2007. He had been carrying a heavy backpack during a training exercise for 2½ hours over hilly terrain. He subsequently had problems with heavy alcohol use and symptoms of low mood.
After discharge from the Australian Army he took an overdose and was admitted briefly to Fremantle Hospital. His mental health symptoms included tearfulness twice per month, alleged weight loss of 9kg and irritability.
He has had treatment including physiotherapy, OxyContin, an opiate analgesic, and three injections into his spine.
He presented to Dr Bell, orthopaedic surgeon, on 4 September [sic] 2011 with bizarre use of a walking stick and good general conditioning. He was diagnosed with mild facet joint inflammation.
Presenting Complaints:
At interview Mr Csont reported that he had been undergoing training for infantry in the bush. Two weeks earlier he had completed a 2½-hour training run with a 57kg backpack. He was required to do the pack march on a hilly course. After this he reported back pain to his sergeant. He sought help from his GP in late 2009.
At the time of the alleged back injury he also had problems with contact with his daughter from a previous relationship. In addition he had financial stress in that a car had been repossessed for $20,000. He declared bankruptcy in 2009.
He reported he was diagnosed with ‘major depressive disorder’. He stated ‘I took the blame for someone else … we were out in Townsville … we cut the piss for celebration. Me and a mate were on the way home. We were jumped by 15 people. I was the only one arrested. I was the only black there. If they watched footage they would see I was innocent’. He reports that he was handed over to the military police and was charged with being drunk and disorderly and was subsequently discharged from the Australian Army.
He attributed his alcohol abuse to the Army. He claimed that when serving in the Army he was drinking ‘30 cans every day’. This appears to equate to 210 units per week (excessive use). He stated ‘I was on the piss really hard. I was back on the drugs’. When I asked him to clarify this, he reported he was using marijuana twice a week and crack to ‘help him work’ once per month.
He reported seeing a GP in Fremantle, after his discharge. He was prescribed an antidepressant amitriptyline 50mg. He reported taking the overdose in July 2009 as he ‘could not handle his discharge’. He took an overdose of a heavy amount of alcohol together with 40 amitriptyline tablets. He lost consciousness and was admitted to the Alma Street Centre, Fremantle Hospital. He believes he was given a diagnosis of major depressive disorder. He recalls his major symptoms were ‘psychological’; by this he meant low mood and suicidal thoughts together with irritability. He was referred to a drug and alcohol counsellor.
Work Status:
Previously he worked as a driver for 13 months. He enlisted as a private rifleman in the Australian Army and was dishonourably discharged on 12 August 2007 [sic].
In civilian employment he worked for 15 months as a machine operator. Currently he is not working.
Current Status:
Mr Csont reports that ‘things are getting better’. He appreciates his partner and 15-month-old son. He feels he is managing his financial issues. He is attending physiotherapy and hydrotherapy. He reports he is motivated to care for his son and partner.
He reports having painful injections, stating ‘my back has exploded’. He describes pain radiating to his leg and buttock.
He describes 12kg weight loss and reduced appetite which he attributes to back pain and reduced exercise. He denied suicidal thoughts for 18 months. He reports going to sleep at 3am with no initial insomnia and then getting up at 7am. He has had a sleep pattern where he only sleeps four hours a night for the past two years.
Lifestyle:
Mr Csont reports that he gets up at 7am to help his son. He claimed that standing aggravates his pain. He has to pace himself when cooking and shopping, for example, but he always ‘gets the job done’. Apparently he is unable to go to the shops 200 metres away and has stopped exercising. He does not go out socially because ‘people have started to show their true colours recently’. At the end of the interview he stated ‘self-care is a bit harder now’.
He reports he occasionally drinks a coffee. He gives a history of heavy alcohol use. He reported he only had six cans of beer at weekends prior to joining the Australian Army. He described that while in the Australian Army he experienced blackouts and intoxication. He reported drinking 30 beers every day. He reports he has not used alcohol for the past nine months. He reported he first used marijuana at the age of 12. He denies other substance abuse.
His main hobby is motorcycles, but he reports he has not driven one since 2007. This appears inconsistent with the report given to John Laugharne. He reported to Dr Laugharne he enjoyed mechanical work. Today he stated he would only do mechanical work, when he lay under a car and felt comfortable.
Current Medication/Treatment:
He sees his general practitioner, Dr Carmen Quadros based at GP Headspace Fremantle every two weeks for supportive psychotherapy. She [sic] reports that she is a good listener and he finds it helpful having time with her.
In addition he has seen a counsellor, Ashley Golar, also based at Headspace for supportive psychotherapy and advice on referral to drug and alcohol services.
He takes non-steroidal anti-inflammatory Naprosyn 1000mg daily.
Past Medical/Psychiatric History:
Mr Csont describes having headaches approximately four times a week. These were documented in Dr Laugharne’s report to be due to opiate withdrawal. He reports his headaches are bi-temporal and can last all day.
Hazardous drinking was noted in his military record in 2007. He also had mild anxiety when using live ammunition. He was given education about alcohol abuse and was advised to reduce his alcohol intake.
Before his military service he denies any prior psychiatric history including seeing a psychologist or psychiatrist, having admission to mental health facilities or taking an overdose.
He reports low back pain since 2007 and receiving treatment for this since 2009.
Family History:
Mr Csont denied a family history of mental health problems.
Personal History:
Mr Csont confirmed he was born in New South Wales. His family migrated to Western Australia when he was aged 8. There was a parental separation when he was aged 10 but he coped well with this. Subsequently he had limited contact with his father. He served with the SAS regiment for 26 years.
He reported difficulty concentrating at school and had to repeat Year 10 twice. He left after Year 10. He was ‘the most popular child in the school’, he reported. He did not get on well with the principal who he believed did not like him for ‘his own reasons’. He was expelled from school because of a conduct issue and then enrolled in TAFE. He had no school refusal issues.
He confirmed he does have a police record which is mainly alcohol-related. He had approximately $15,000 of fines from drunk and disorderly charges and had a licence suspended. He has been imprisoned for two periods, the first 32 days for drink driving and then 35 days for armed with intent to cause harm.
He confirmed he had no contact with his 4-year-old child from a previous relationship.
He has a three-year relationship with his de facto and their infant child.
MENTAL STATE EXAMINATION:
At interview Mr Csont looked well. He was well groomed. He appeared relaxed and confident. There was no evidence of mental health symptoms at interview. He did however walk in with a stick and at times during the interview groaned, however at the same time he was doing this he was able to smile and joke. He was an inconsistent historian. He expressed concern about whether ‘they’ will give him ‘a nice offer’. He expressed a number of themes of self-pity.
His speech was normal in rate, tone and volume. He had no formal thought disorder. He frequently swore during the interview. He had a normal range of affect. He did not appear depressed, anxious or angry during the interview. He was able to laugh and joke. There were no delusions and no hallucinations. He denied current thoughts of suicide or self-harm. He appeared of normal intelligence. He was fully orientated. His memory was intact. His concentration was normal.
In terms of insight he appeared to blame his issues on other people. ‘Everything … I was so pissed off about being discharged from the Army. They took that away from me. I can’t do that ever again.’
In terms of alcohol use he recognises that this has a harmful effect on his relationships, ‘it turns me into someone I’m not’.
Adaptation: Mr Csont is aware of how to get help for drug and alcohol issues. He appreciates support from his partner and his relationship with his infant son. He has been able to apply distraction and slow breathing techniques learned in therapy. He primarily copes through projection. He also uses humour effectively. He has avoided exercise since his alleged back injury.
Attitude to problem: Mr Csont stated ‘it’s only caught up with me in the last two months. I deserve better respect from the law. I feel dissatisfied. They could have helped me more in the Army instead of kicking me out, no questions asked. I feel pretty ripped off. They gave me a bad addiction. I could run 100 metres in 11.5 seconds four years ago. Now I can’t do anything’.
PERSONALITY:
Mr Csont described himself as a loving caring person who is hilarious and outgoing. He stated ‘everyone loves me … I’m the plan man’. He sees himself as a bubbly, enthusiastic person who is fun to be around. He describes a sanguine temperament. He also gave a history of features of antisocial personality disorder including repeated failure to conform to social norms, impulsivity, frequent fights, irresponsibility, lack of remorse and evidence of conduct disorder prior to the age of 15, including being expelled from school and substance abuse issues from age 12.
SUMMARY AND ASSESSMENT:
My diagnosis according to DSM-IV TR is as follows:
Axis I: Alcohol Abuse (in remission)
Marijuana Abuse
Possible Adjustment Disorder
Axis II: Antisocial personality disorder
Axis III: Alleged back pain
Axis IV: Family issues, financial stress, legal issues
Axis V: Global assessment of functioning 75 (mild symptoms).
I am unable to exclude malingering. His behaviour at interview where he appeared well from a mental health perspective was inconsistent with the reported symptoms. He gave an inconsistent history. He expressed a desire to receive a ‘nice payout’.
I have discussed Mr Csont’s case with my colleague Dr John Bell to gain an understanding of the broader medical complexities affecting Mr Csont.
I have taken Dr Bell’s medical opinion into consideration and will now answer your questions accordingly.
Schedule of questions
1. Can Jye Csont's accepted condition(s) currently be classed as stable, permanent and not likely to improve above the current level of impairment?
If the answer is yes, please complete the attached impairment forms. In completing these forms and writing your report could you also please objectively assess Jye Csont's ability to perform the indication [sic] functions and comment on your assessing method and observations.
If the answer is yes, could you please advise that date when Jye Csont's accepted condition(s) became stable and permanent?
If the answer is no, please provide your opinion of when the condition should be reviewed.
Mr Csont’s accepted condition can be classified as stable, permanent and not likely to improve. It has been stable and permanent since December 2010 when he moved into a house with his current partner and ceased alcohol abuse.
2. Has Jye Csont undergone all reasonable medical treatment?
Is there any treatment that, in your opinion, would decrease the level of impairment Jye Csont currently suffers? If the answer is yes, please provide details of treatment.
Mr Csont has undergone all reasonable medical treatment.
3. Please include in your report any additional information you consider relevant.
Nil further to report.
…”
Dr Spear’s medical impairment assessment in relation to the applicant’s compensable mental condition, namely, adjustment disorder, includes the following assessments of particular aspects thereof:
·subjective distress – “recurring symptoms causing mild distress; he can distract himself from the distress on most occasions”;
·manifest distress – “nil, minimal or rare signs of distress”;
·functional effects – “minimal or no interference with most aspects of living”;
·occupation – “minimal or no interference with work or occupation”;
·domestic situation – “minimal or no effect on ordinary family life”;
·social interaction – “minimal or no effect on ordinary social contacts”;
·leisure activities – “minimal or no effect on leisure activities”;
·current therapy – “no regular treatment sought or recommended”.
Dr Johan Yin
A Combined Impairment Report, dated 28 September 2011, prepared by Dr Yin, Departmental Medical Officer, in response to a request by a delegate of the respondent, is included in the T Documents (T47). That report contains Dr Yin’s combined impairment rating, based on the abovementioned reports and medical impairment assessments of Dr Bell and Dr Spear, in relation to the compensable conditions in accordance with “GARP M”.
Dr Yin’s report states as follows:
“ …
Summary
Emotional and Behavioural 3 points
Spine and Limbs – Thoraco-Lumbar Spine 18 points
Spine and Limbs – Lower Limbs/Sciatica 0 points
Spine and Limbs – Resting Joint Pain 5 points
Total Impairment: 24 points
Accepted Disabilities
The following disabilities have been assessed for the purpose of calculating a combined impairment rating under the Guide to the Assessment of Rates of Veterans’ Pensions Military [sic] (GARP M):
Bilateral Medial Tibial Stress Syndrome
This disability has been assessed using the following assessment procedures:
Spine and Limbs – Lower Limbs/Sciatica (standard)
Spine and Limbs – Resting Joint Pain (standard)
Thoracic Strain
This disability has been assessed using the following assessment procedures:
Spine and Limbs – Thoraco-Lumbar Spine (standard)
Spine and Limbs – Resting Joint Pain (standard)
Lumbar Spondylosis With Sciatica
This disability has been assessed using the following assessment procedures:
Spine and Limbs – Thoraco-Lumbar Spine (standard)
Spine and Limbs – Lower Limbs/Sciatica (standard)
Spine and Limbs – Resting Joint Pain (standard)
Adjustment Disorder
This disability has been assessed using the following assessment procedure:
Emotional and Behavioural (standard)
Calculation of Final Score
Emotional and Behavioural
All 3 points obtained by applying the Emotional and Behavioural standard assessment procedure for Adjustment Disorder have been used in the calculation of the final impairment rating.
Spine and Limbs – Thoraco-Lumbar Spine
All 18 points obtained by applying the Spine and Limbs – Thoraco-Lumbar Spine standard assessment procedure for Thoracic Strain and Lumbar Spondylosis With Sciatica have been used in the calculation of the final impairment rating.
Spine and Limbs – Lower Limbs/Sciatica
No points were obtained by applying the Spine and Limbs – Lower Limbs/Sciatica standard assessment procedure for Bilateral Medial Tibial Stress Syndrome and Lumbar Spondylosis With Sciatica.
Spine and Limbs – Resting Joint Pain
All 5 points obtained by applying the Spine and Limbs – Resting Joint Pain standard assessment procedure for Bilateral Medial Tibial Stress Syndrome, Thoracic Strain and Lumbar Spondylosis With Sciatica have been used in the calculation of the final impairment rating.
Emotional and Behavioural
The following disability has been assessed under the Emotional and Behavioural assessment procedure:
Adjustment Disorder
Emotional and Behavioural Impairment
The rating for Emotional and Behavioural is obtained by adding the ratings from table 4.1, Table 4.2, and the three highest ratings from the remaining tables (Tables 4.3 to 4.8).
Subjective Distress
The following selection was made from Table 4.1 to describe the emotional and behavioural impairment:
Recurring symptoms causing mild distress. The veteran can distract himself or herself from the distress on most occasions.
3 points
Explanation given for selection:
As assessed by psychiatrist.
Manifest Distress
The following selection was made from Table 4.2 to describe the emotional and behavioural impairment:
Nil, minimal, or rare signs of distress. 0 points
Explanation given for selection:
As assessed by psychiatrist.
Functional Effects
The following selection was made from Table 4.3 to describe the emotional and behavioural impairment:
Minimal or no interference with most aspects of living. 0 points
Explanation given for selection:
As assessed by psychiatrist.
Occupation
The following selection was made from Table 4.4 to describe the emotional and behavioural impairment:
Minimal or no interference with work or occupation. 0 points
Explanation given for selection:
As assessed by psychiatrist.
Domestic Situation
The following selection was made from Table 4.5 to describe the emotional and behavioural impairment:
Minimal or no effect on ordinary family life. 0 points
Explanation given for selection:
As assessed by psychiatrist.
Social Interaction
The following selection was made from Table 4.6 to describe the emotional and behavioural impairment:
Minimal or no effect on ordinary social contacts. 0 points
Explanation given for selection:
As assessed by psychiatrist.
Leisure Activities
The following selection was made from Table 4.7 to describe the emotional and behavioural impairment:
Minimal or no effect on leisure activities. 0 points
Explanation given for selection:
As assessed by psychiatrist
Current Therapy
The following selection was made from Table 4.8 to describe the emotional and behavioural impairment:
No regular treatment sought or recommended. 0 points
Explanation given for selection:
As assessed by psychiatrist.
This impairment rating is wholly due to accepted conditions.
Spine and Limbs – Thoraco-Lumbar Spine
The following disabilities have been assessed under the Spine and Limbs – Thoraco-Lumbar Spine assessment procedure:
Thoracic Strain
Lumbar Spondylosis With Sciatica
Loss of Function in the Thoraco-Lumbar Spine
The following selection was made from Table 3.3.1 to describe the loss of function in the thoraco-lumbar spine:
Loss of about one-quarter normal range of movement 10 points
This impairment rating is wholly due to accepted conditions.
Loss of Function in the Thoraco-Lumbar Spine (Based on use of Spine)
The following selection was made from Table 3.3.2 to describe the loss of function in the thoraco-lumbar spine (based on use of spine):
Thoraco-lumbar spine condition generally causes pain or undue pain or undue fatigue within five minutes, and so requires very frequent very frequent changes of posture. 15 points
This impairment rating is wholly due to accepted conditions.
Age Adjustment
The Functional Impairment has been adjusted for age using Table 3.6.1
The Veteran’s age for the purposes of the age adjustment is 23 years
The adjusted score is: 18 points Crush Fractures of Vertebrae of the Thoraco-Lumbar Spine
The following selection was made from Table 3.3.3 to describe the crush fractures of vertebrae of the thoraco-lumbar spine:
No fracture of the vertebrae. 0 points
Spine and Limbs – Lower Limbs/Sciatica
The following disabilities have been assessed under the Spine and Limbs – Lower Limbs/Sciatica assessment procedure:
Bilateral Medial Tibial Stress Syndrome
Lumbar Spondylosis With Sciatica
Loss of Musculoskeletal Function Affecting the Lower Limbs
The following selection was made from Table 3.2.2 to describe the loss of musculoskeletal function affecting the lower limbs, impairing the ability to walk:
Walks in a manner normal for age on a variety of different terrains and different terrains and at varying speeds 0 points
Spine and Limbs – Resting Joint Pain
The following disabilities have been assessed under the Spine and Limbs – Resting Joint Pain assessment procedure:
Bilateral Medial Tibial Stress Syndrome
Thoracic Strain
Lumbar Spondylosis With Sciatica
Impairment due to Resting Joint Pain
The following selection was made from Table 3.4.1 to describe the resting joint pain:
Pain in the back that limits comfortable sitting to less than 10 minutes less than 10 minutes at a time 5 points
Disfigurement & Social Impairment
No conditions have been assessed under the disfigurement & social impairment standard assessment procedure.”
Mr Graham Jeffs
A report of Mr Jeffs, Consultant Neurosurgeon, dated 3 April 2012, is included in the T Document (T57). That report states as follows:
“ I first met Mr Csont on 1st August 2011 when he was referred from my colleague Mr John Liddell. Mr Csont was a 23 year old man who had previously worked in the Armed Forces. He presented with an approximately 4 year history of low back pain after a back injury which apparently occurred in 2007. He was discharged from the Army in 2008 because of ongoing back problems.
When he was seen by Mr Liddell in May 2011, he was complaining primarily of lumbar back pain with radiation into the left buttock and down the back of left thigh. There did not appear to be radiation below the knee.
I obtained a similar history and report of symptoms when I first Mr Csont in August 2011, where the main complaint was clearly low back pain radiating into the left hip with some left posterior thigh pain.
On examination he appeared to be in some discomfort and was walking very cautiously. I could not find evidence, at that time, of any clear neurological deficit.
His MRI scans demonstrated quite advanced degeneration at L4/5 with essentially normal adjacent levels. I was not convinced that there was significant nerve impingement but felt that his symptoms and radiology were suggestive of possible L4/5 discogenic pain.
As suggest [sic] by Mr John Liddell, definitive treatment of discogenic back pain generally involves fusion surgery. I explained to Jye that if he was not improving with conservative management we could consider an anterior procedure to perform an inter-body fusion. This would avoid significant posterior muscle dissection and would allow early mobilisation. Essentially, the operation would take away the radiological abnormality and I would expect it to significantly reduce his back pain and radiating pain into the left buttock and hip.
Facet joint injections were requested to see whether there was any benefit from injection [sic] the L4/5 facet joints but no benefit was demonstrated.
The option of surgery was put to Mr Csont but he felt that he would prefer to defer such surgery at a young age. I felt that this was quite reasonable and given that the problem was likely to be a chronic one and unlikely to advance rapidly, I left it open to him to contact us in the future if he was interested in having any surgical treatment.
I feel that Mr Csont’s symptoms are consistent with discogenic back pain at the L4/5 level. Treating this level would be expected to reduce his back pain and left hip/buttock pain. That said, I cannot guarantee that he would be absolutely pain free and it has been suggested in other reports that there may be significant overlay from psychological factors. I cannot rule this out, and I understand what [sic] other evaluating physicians have reported, that parts of his presentation are somewhat atypical. For example, it is unusual to have to walk with the assistance of a stick with discogenic back pain. His presentation does appear to be somewhat more severe than one might expect from simple degeneration at a single level.
In chronic pain cases, however, it can be difficult to determine how much a person’s presentation is affect [sic] by the chronicity of the disease and whilst there are often complicated psycho-psychological factors this does not necessarily mean that a person is not suffering pain from the disc degeneration.
My rationale when there is demonstrated radiological disease consistent with the symptoms described, even if they appear exaggerated, is to definitively treat the pathology thereby removing it from the equation. In Mr Csont’s case, I would expect this to improve his back pain symptoms but I cannot guarantee that his associated pain behaviour will completely resolve or alter.
In summary, Mr Csont is a young man with advanced disc degeneration with L4/5 which I believe is related to a previous back injury whilst serving in the Armed Forces. I believe he is suffering from discogenic pain. Whilst there main [sic] be some overlapping psychosocial factors, I do not think it is unreasonable to consider surgery from an anterior approach to remove the L4/5 disc and fuse that level. This should eliminate any contribution from discogenic pain at L4/5.
…”
Analysis and Findings
It is common ground that the applicant has suffered a whole person impairment resulting from the compensable conditions and that that impairment is permanent. It is also common ground that permanent impairment compensation is payable to the applicant pursuant to s 68 of the MRC Act.
The degree of the applicant’s whole person impairment resulting from the compensable conditions is to be assessed in accordance with the Guide to Determining Impairment and Compensation (Instrument No M9 of 2005) (“GARP M”) determined by the respondent under s 67(1) of the MRC Act.
The applicant contended that he was entitled to a greater amount of permanent impairment compensation than had been determined by the respondent’s delegate in the determination of 21 October 2011, which was confirmed by the reviewable determination of 17 April 2012 (see paragraphs 3 and 4 above). The applicant, however, did not specify the precise basis for that contention; nor did he provide any new medical evidence in support of that contention.
The respondent contended that the appropriate combined impairment rating in the applicant’s case is 19, instead of 24 as determined by its delegates in the abovementioned determination and reviewable determination. More specifically, the respondent contended that the following impairment ratings were appropriate:
·thoraco-lumbar spine 12 points
(Tables 3.3.1 and 3.6.1 in GARP M)
·resting joint pain 5 points
(Table 3.4.1 in GARP M)
·emotional and behavioural 3 points
(Tables 4.1–4.8 in GARP M)
resulting in a combined impairment rating of 19. The respondent contended that the lifestyle effects rating of 2, as determined by the respondent’s delegates (Tables 22.1–22.5 in GARP M), is appropriate.
Having regard to the medical evidence before it, the Tribunal accepts Dr Yin’s assessment of the degree of impairment resulting from the compensable conditions. As regards the particular impairment assessment made by Dr Yin which the respondent has contended should not be accepted by the Tribunal – namely, the impairment rating in respect of the applicant’s thoraco-lumbar spine – the Tribunal is satisfied, on the basis of Dr Bell’s medical impairment assessment which states that the applicant suffers “constant low back pain”, that an impairment rating of 15 points under Table 3.3.2 in GARP M is appropriate (rather than an impairment rating of 5 points under that Table as submitted by the respondent).
Accordingly, the Tribunal’s findings, in accordance with the relevant Tables in GARP M, regarding the degree of impairment resulting from the compensable conditions are as follows:
·bilateral medial tibial stress syndrome – nil (Table 3.2.2);
·thoracic strain and lumbar spondylosis with sciatica – 15 points (Table 3.3.2), increasing to 18 points with age adjustment (Table 3.6.1);
·thoracic strain and lumbar spondylosis with sciatica – resting joint pain – 5 points (Table 3.34.1);
·adjustment disorder – 3 points (Table 4.1); nil (Tables 4.2–4.8).
On the basis of the abovementioned impairment ratings, the Tribunal finds, in accordance with Chapter 18 and Table 18.1 (Combined Values Chart) in GARP M, that the combined impairment rating in relation to the compensable conditions is 24.
Having regard to the whole of the evidence before it, the Tribunal finds, in accordance with Chapter 22 and Tables 22.1–22.4 in GARP M, that the appropriate lifestyle rating in the applicant’s case is 2.
Conclusion
The Tribunal’s findings regarding the appropriate combined impairment rating and lifestyle rating in the applicant’s case accord with those made by the respondent’s delegate in the determination of 21 October 2011, as confirmed in the reviewable determination of 17 April 2012 (see paragraphs 3–4 above). The Tribunal accepts – there being no contention by the applicant to the contrary – that the delegate’s calculation of the amount of permanent impairment compensation payable to the applicant on the basis of those findings was correct.
Decision
For the above reasons the decision under review is affirmed.
I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member .......................[sgd].................................................
Administrative Assistant
Dated 11 April 2013
Dates of hearing 26–27 March 2013 Representative of the Applicant In person (unrepresented) Counsel for the Respondent Mr C Clark Solicitors for the Respondent Spark Helmore
0
0
0