Karnaghan and Military Rehabilitation and Compensation Commission
[2004] AATA 1275
•1 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1275
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/436
VETERANS' APPEALS DIVISION ) Re MITCHELL KARNAGHAN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date1 December 2004
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that the liability of the Military Rehabilitation and Compensation Commission to pay Mr Karnaghan compensation in relation to his previously accepted thoracolumbar and psychiatric injuries did not cease on 17 July 2002 and is presently ongoing.
Mr Karnaghan is not entitled to payment of compensation for permanent impairment in relation to his thoracolumbar or psychiatric injuries at this time.
The Commission is to pay 50 percent Mr Karnaghan’s reasonable costs in these proceedings as agreed or taxed.
The matter is remitted to the Respondent to determine the amount of compensation, if any, that is payable to Mr Karnaghan consistent with these reasons.
..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - liability accepted for thoracolumbar back conditions and dysthymic disorder – decision to deny liability for back conditions – no jurisdiction in relation to primary determinations accepting liability – conflicting medical evidence - difficulty of diagnosis – biomechanical and somatized pain – continuing symptomatology – effects of compensable injuries not ceased – pain symptomatology increased by psychiatric condition – decision set aside
COMPENSATION – permanent impairment – impairment not permanent – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27, 62, 67
Comcare v Moon [2003] FCA 569 (6 June 2003)
Comcare v Power [1998] FCA 1783 (20 November 1998)
Australian Postal Corporation v Oudyn [2003] FCA 318 (10 April 2003)
Re Liu and Comcare [2004] AATA 617
The Commonwealth v Muratore (1978) 141 CLR 296
Comcare v Nichols [1999] FCA 209 (31 March 1999)
Re Hocking and Australian Postal Corporation [2002] AATA 963 (22 October 2002)
Watts v Rake (1960) 108 CLR 158
REASONS FOR DECISION
December 2004 Mr S. Webb, Member 1. By this application Mitchell Karnaghan is seeking relief from decisions by the Military Rehabilitation and Compensation Commission, formerly the Military Compensation and Rehabilitation Service, (“the Commission”) to deny liability to pay compensation from 17 July 2002 in relation to back conditions that were previously accepted as work caused injuries and to reject his claims for permanent impairment compensation in relation to the aforementioned back conditions and work-related dysthymic disorder.
2. The matter came on for hearing in Canberra on 15 to 17 November 2004. Mr Karnaghan was represented by Mr A. Anforth, counsel. The Commission was represented by Mr S. Whybrow, counsel. Mr Karnaghan, Dr D. Rivett, Dr L. Reiter, Dr R. Whittaker, Dr G. Stubbs, Dr A. Searle, Professor S. Nade, Dr J. Chapman and Dr W. Mickleburgh gave oral evidence. The Tribunal had before it documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and materials that were tendered and labelled at the hearing.
factual context
3. Mr Karnaghan (date of birth: 30 September 1966) enlisted in the Royal Australian Air Force (“RAAF”) in February 1990. He underwent medical examinations for that purpose on 8 and 27 February 1990 and was reported to be a “keen sportsman … plainly he is fit”. No abnormality was reported in his back and no history of back problems was recorded (see Exhibits D5-7).
4. Extensive medical records during the period of Mr Karnaghan’s service in the RAAF are in evidence (Exhibit D). It is not necessary to set out, in detail, all relevant entries in those records here.
5. Mr Karnaghan was found to be medically unfit for service on 17 February 2000 and was discharged from the RAAF on 3 November 2000.
6. On 12 December 2000 Mr Karnaghan lodged a claim for compensation in relation to “chronic thoracic back pain with ossification of the ligament flavum and degenerative changes at T4-T12 – L1-L2”. Mr Karnaghan indicated on the claim form that the injury occurred on 21 August 1993 and he first received medical treatment on 6 October 1993. He claimed to have reported the injury on 14 April 1993 and 27 October 1992 and ticked boxes indicating “Traffic accident while working” and “Other … on exercise Aces North (92)” (T38 folio 50). Mr Karnaghan attached to his claim a statement concerning those alleged incidents (T39 folio 54).
7. Also on 12 December 2000 Mr Karnaghan lodged a claim for permanent impairment compensation in relation to chronic thoracic back pain to which was attached an assessment by Dr R. Scott (T39 folios 52-53). On 14 February 2001 Dr Scott reported that Mr Karnagahan was “suffering from Chronic Thoracic Back Pain caused … by the incident with the bomb in 1992 as described…” (T43 folio 62). Dr Scott also reported that Mr Karnaghan was suffering from a “Depressive State” which was caused or aggravated by his RAAF employment.
8. On 29 June 2001 a delegate of the Commission determined that (T46):
“[Mr Karnaghan had] contracted a disease to which [his] military service contributed in a material degree, namely prominent ossification at T4/5 and T5/6 and to a lesser extent at T8/9 due to ossification in the ligamentum flavum posteriorly. Degeneration in the posterior facet joints from T4 to T12. Narrowing of the thecal sac at T4/5 and T6/7 due to posterior ossification.
I further determine that, for the purposes of the Act the date of injury is 21 July 1993 as this is the date you first sought medical treatment for back pain.”
That determination denied liability for degenerative changes at the L1-L2 level in Mr Karnaghan’s lumbar spine. However, on 1 August 2001, a delegate of the Commission determined to accept liability for those degenerative changes arising from or in the course of his military service (T56).
9. On 27 September 2001 Mr Karnaghan lodged a claim for compensation in relation to “a depressive episode”, referred to as “Dysthymia with suicidal ideation” (T75). On 29 January 2002 a delegate of the Commission determined to accept liability for dysthymic disorder arising out or or in the course of Mr Karnaghan’s military service (T87).
10. Dr Whittaker examined Mr Karnaghan in May 2002 and diagnosed Mr Karnaghan to be suffering from a thoracocolumbar kyphoscoliosis that was unrelated to his military service (T104 and T105).
11. On 17 July 2002 a delegate of the Commission determined to deny Mr Karnaghan’s claim for permanent impairment compensation in relation to his back and psychiatric conditions and also determined that “liability for your back and psychiatric conditions have now been ceased” (T106).
12. On 26 August 2002 the Commission conducted an own motion reconsideration of the determination and decided to revoke that part of the determination which ceased liability in relation to dysthymic disorder (T109).
13. On 8 November 2002, by request of Mr Karnaghan, the Commission reconsidered and decided to affirm the 17 July 2002 determination. A reviewable decision was issued to that effect (T121).
14. On 16 November 2002 Mr Karnaghan applied for review of the reviewable decision (T1).
issues for determination
15. The Commission conceded and it was agreed that the primary determinations concerning the Commission’s acceptance of liability in relation to posterior facet joint degeneration at the T4-T12 and L1-L2 levels, ossification of the ligamenta flava, especially at T4/5, T5/6 and T8/9 and chronic thoracolumbar pain (“the compensable injuries”) (T46 and T56) were not in issue in these proceedings. This Tribunal has no jurisdiction in relation to those determinations (see Comcare v Moon [2003] FCA 569 (6 June 2003); Comcare v Power [1998] FCA 1783 (20 November 1998).
16. Furthermore, to the extent that the reviewable decision (T121) purported to deny future liability for previously accepted back and psychiatric injuries, it cannot stand (Australian Postal Corporation v Oudyn [2003] FCA 318 (10 April 2003); Re Liu and Comcare [2004] AATA 617).
17. At the hearing the Commission conceded that there was no dispute about liability in relation to dysthymic disorder, which was “reinstated” by an own motion reconsideration. During proceedings, Mr Karnaghan conceded his claim for permanent impairment compensation in relation to dysthymic disorder.
18. The issues remaining for determination, therefore, are whether Mr Karnaghan suffered from the effects of the compensable injury to his back, in relation to which liability was accepted by the Commission, at any time from 17 July 2002 to this day, and whether he is entitled to payment of compensation for permanent impairment in relation to that injury.
legal principles
19. Mr Karnaghan’s application rises for consideration under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). For compensation to be payable under the Act the claimant must have suffered an injury as defined. “Injury” includes a disease, being an ailment that was “contributed to in a material degree by the employee’s employment” (ss 4(1)). The Commission is liable to pay compensation if the injury results in incapacity for work or impairment (ss 14(1)).
20. In Mr Karnaghan’s case, the Commission made three determinations to accept liability for injuries that he had suffered in his employment. Those determinations may be the subject of reconsideration by the Commission, on its own motion or by request of the applicant (ss 62(1)). However, those determinations have not been the subject of such reconsideration and are not the subject of this review. The reviewable decision that is the result of reconsideration by the Commission pursuant to ss 62(1) of the Act operates only from 17 July 2002. This Tribunal is confined to reviewing that decision (see Comcare v Moon [2003] FCA 569 at pars 31-32). Even so, for the purposes of this review it is necessary to consider all of the evidence, including recent medical reports, and analyse afresh the relevant facts in order to determine whether the Commission has a continuing liability to pay Mr Karnaghan compensation (see Power v Comcare (1998) 89 FCR 514 at 526-527).
21. There is no onus of proof on either party in these proceedings, but the party that seeks to disturb the state of affairs existing before the operative date of the decision under review bears the burden of establishing relevant facts to the satisfaction of the Tribunal (The Commonwealth v Muratore (1978) 141 CLR 296; Comcare v Nichols [1999] FCA 209 (31 March 1999); Re Hocking and Australian Postal Corporation [2002] AATA 963 (22 October 2002)).
22. Comcare is liable to pay compensation in relation to an injury which results in permanent impairment (ss 24(1)). “Permanent” is defined to mean “likely to continue indefinitely” (ss 4(1)). Matters to which the Commission shall have regard when determining whether an impairment is permanent are set out at ss 24(2). The degree of permanent impairment is to be assessed using the “Guide to the Assessment of the Degree of Permanent Impairment” (“the approved Guide”) (ss 24(5) and s 28). Compensation for non-economic loss suffered as a result of a compensable injury and consequent permanent impairment is payable pursuant to s 27 of the Act.
summary findings
23. Mr Karnaghan was an employee within the terms of the Act during the period of his military service in the RAAF.
24. I am satisfied, on the balance of probabilities, that Mr Karnaghan suffers from thoracolumbar kyphoscoliosis, posterior facet joint degeneration at the T4-T12 and L1-L2 levels, ossification of the posterior longitudinal ligaments and ligamenta flava, especially at T4/5, T5/6 and T8/9, chronic thoracolumbar pain and dysthymic disorder.
25. Furthermore, I am satisfied that Mr Karnaghan suffered injuries to his thoracolumbar spine in the course of performing his duties in his previous RAAF employment. Those injuries caused him to suffer intermittent impairment and increasing incapacity for work, leading ultimately, in part, to his discharge on invalidity grounds. The Commission accepted liability for those injuries which is ongoing.
26. The Commission has accepted ongoing liability under the Act in relation to Mr Karnaghan’s dysthymic disorder.
27. I accept that the aetiology of Mr Karnaghan’s thoracolumbar spinal condition is multifactorial. Nonetheless, on the balance of probabilities, it is more likely than not that Mr Karnaghan’s back injuries in his previous employment and his compensable dysthymic disorder contributed in material part to cause, aggravate or render symptomatic the thoracolumbar condition from which he currently suffers.
28. Mr Karnaghan’s compensable thoracolumbar injuries have caused him impairment and incapacity for work from 17 July 2002 to the present day.
29. The degree of impairment Mr Karnaghan suffers as a result of the thoracolumbar injuries cannot accurately be assessed at this time. Mr Karnaghan’s spinal impairment is affected by pain, causing restriction of his range of thoracolumbar spinal movement. That pain is multifactorial and is materially contributed to by his dysthymic disorder. His dysthymic disorder may be improved with further treatment and in consequence Mr Karnaghan’s perception of pain and the degree of his resulting spinal impairment may be reduced. It follows that his spinal impairment is not permanent.
30. Mr Karnaghan is not entitled to compensation for permanent impairment in relation to his psychiatric or thoracolumbar spine injuries at this time.
decision
31. The decision under review is set aside and in substitution thereof the Tribunal decides that the liability of the Commission to pay compensation to Mr Karnaghan in relation to his previously accepted thoracolumbar and psychiatric injuries did not cease on 17 July 2002 and is presently ongoing. Mr Karnaghan is not entitled to payment of compensation for permanent impairment in relation to his thoracolumbar or psychiatric injuries at this time.
32. The Commission is to pay 50 percent Mr Karnaghan’s reasonable costs in these proceedings as agreed or taxed.
33. The matter is remitted to the Commission to determine the amount of compensation, if any, that is payable to Mr Karnaghan consistent with these reasons.
reasons for the decision
34. Making this decision I have carefully considered all of the evidence placed before me, the submissions of the parties, the relevant caselaw and legislation.
credit
35. In the light of Mr Karnaghan’s psychiatric condition it is perhaps not surprising that questions arose about the reliability of his evidence. I am satisfied that his evidence should be treated cautiously. There are plain inconsistencies in the history of his back problems that he has given over time to doctors who have treated or examined him and to this Tribunal.
service
36. It is accepted that Mr Karnaghan was an employee within the terms of the Act for the duration of his military service in the RAAF.
dysthymic disorder
37. The decision under review purportedly ceased liability in the Commission in relation to dysthymic disorder. By an own motion reconsideration prior to the date of the decision under review, the Commission accepted ongoing liability in relation to that condition. Issues of liability in relation to that disorder were not agitated before me. It was agreed and I accept that that part of the decision under review which purportedly ceased liability in the Commission in relation to dysthymic disorder should be set aside, as liability is ongoing.
38. I note in passing that Mr Karnaghan has been in receipt of periodic incapacity payments as a result of his dysthymic disorder during the period in question.
39. Furthermore, during the course of these proceedings at hearing Mr Karnaghan conceded and declined to further press his claim for permanent impairment compensation in relation to dysthymic disorder. His concession was on the basis that the impairment he suffers as a result of that condition is not yet permanent and further rehabilitative treatment may reduce the degree of his impairment. That is the thrust of the evidence of Dr Mickleburgh and I accept it. It follows that that part of the decision under review dealing with permanent impairment compensation in relation to dysthymic disorder is affirmed.
liability
40. The decision under review purported to cease all liability in the Commission relating to Mr Karnaghan’s previously accepted thoracolumbar injuries from 17 July 2002. To the extent that that decision denies any future liability for those compensable injuries it cannot stand and is set aside (Re Liu and Comcare (supra)). Nonetheless, the question whether Mr Karnaghan continued to suffer from the effects of those compensable injuries on 17 July 2002 or thereafter to the present day remains to be determined.
diagnosis, onset and aetiology
41. There is considerable evidence concerning the diagnosis and aetiology of Mr Karnaghan’s spinal conditions before me. I note the medical reports by Dr Reiter, Dr Searle, Dr Stubbs, Dr Champion, Professor Nade, Dr Phillips, Dr Scott and Mr Karnaghan’s service medical records (Exhibit D).
42. The weight of that evidence is that Mr Karnaghan suffers from thoracolumbar kyphoscoliosis, posterior facet joint degeneration at the T4-T12 and L1-L2 levels, ossification of the posterior longitudinal ligaments and ligamenta flava, especially at T4/5, T5/6 and T8/9 and chronic thoracolumbar pain. I so find.
43. I am satisfied that Mr Karnaghan suffered from those conditions on 17 July 2002 and continues to so suffer today. I am satisfied that he did not suffer from those conditions prior to November 1992, when he alleges he first injured his thoracolumbar spine.
44. In the Commission’s submission two hypotheses of biomechanical causation are open on the material before me: the first being that Mr Karnaghan suffered from a developmental or constitutional thoracolumbar kyphoscoliosis, possibly related to Scheuermann’s Disease as a teenager, which caused posterior facet joint degeneration and ossification of the posterior longitudinal ligaments and the ligamenta flava; the second being that Mr Karnaghan suffered a trauma to his spine, possibly as a result of work-injury, which caused posterior facet joint degeneration, thoracolumbar kyphoscoliosis and ossification of the posterior spinal ligaments. Mr Karnaghan submitted that, even in the case of the former hypothesis, it is open for me to find that his injuries aggravated the underlying condition, if such underlying condition was found to exist. In such case, the Commission contended that any aggravation, if found, would have been temporary as the injuries constituted no more than mild muscle sprains.
45. Those submissions go to issues of causation and aetiology in relation to Mr Karnaghan’s bio-mechanical spinal conditions. They do not adequately address the issue of causation in relation to Mr Karnaghan’s complaints of chronic incapacitating back pain. That is a matter to which I will return.
46. The medical evidence is that the aetiology of posterior spinal ligament ossification is not fully understood and is a subject about which medical opinions diverge. Professor Nade gave evidence that the condition may be metabolic in origin. He, Dr Stubbs and Dr Whittaker were of the opinion that the condition could not be related to trauma. Dr Reiter and Dr Searle were of the opinion that it may be caused by trauma. Nonetheless, it is clear from the X-ray of Mr Karnaghan’s lumbosacral spine in November 1993 that he did not suffer from calcification of the posterior spinal ligaments and no osteophytes were present in his lumbosacral spine at that time. Plainly, those findings do not rule out the possibility of calcification or osteophytes in Mr Karnaghan’s thoracic spine at that time. However, even if I was to accept the theory put forward by Dr Reiter and Dr Searle that calcification or ossification of the posterior spinal ligaments could be the result of trauma by a process of deposition of calcium from blood, and I make no such finding, there is no evidence of calcification or osteophytes in Mr Karnaghan’s thoracic spine until 30 March 1998 and it is unclear whether the ossification of the posterior spinal ligaments at that time or thereafter was causally related to Mr Karnaghan’s perception of disabling pain and stiffness. That remains an open question and for reasons that will appear it is not necessary for me to resolve this conflict in the medical evidence for present purposes.
47. The preponderance of the medical evidence suggests that trauma may be one of a number of possible causes of kyphosis, scoliosis or facet joint degeneration and that trauma, even mild or serial trauma, may be sufficient to aggravate or render symptomatic any such pre-existing condition.
48. The medical evidence suggests that kyphosis and scoliosis, being curvatures of the spine, may be found in a person without causing symptoms of pain, especially in younger people. Similarly, posterior facet joint degeneration and posterior ligamental ossification may exist in a person without causing pain. There is a correlation between increasing age, degeneration and pain in such conditions. Dr Reiter gave evidence which I accept that congenital thoracolumbar kyphoscoliosis was unlikely to be productive of pain in a person of Mr Karnaghan’s age, whereas thoracolumbar kyphoscoliosis that was the product of trauma would be expected to cause pain in a person so affected.
49. There was significant agreement between the doctors giving oral evidence that a person suffering thoracic spine trauma that was sufficient to cause kyphosis or facet joint degeneration would be expected to experience immediate pain with a high likelihood of incapacity. I accept that evidence but note that ligamentous injury may give rise to gradually increasing pain over time, taking months to settle, whereas pain relating to a muscle strain would be expected to resolve within a matter of weeks.
50. That Mr Karnaghan did not present for medical treatment and was capable of performing his duties in the period from 1994 to 1996 does not negative his claim. The weight of the medical evidence suggests, and I accept, that pain relating to ligamentous or intervertebral spinal injury may settle after a period of months and may remain aquiescent for an extended period in the absence of aggravating trauma.
injury
51. I am satisfied, on the balance of probabilities, that Mr Karnaghan suffered from a series of compensable thoracolumbar injuries that arose out of or in the course of his previous employment consistent with the record of reported incidents in the contemporaneous medical records and clinical notes.
52. I note in passing that Mr Karnaghan gave evidence that he experienced immediate wrenching pain and the sensation of something occurring in his thoracic spine between his shoulder blades when attempting to restrain a 2000 pound bomb in November 1992 but did not lodge any complaint in relation to his back at that time. However, following a subsequent incident in which he claimed he lifted a bomb sling in January 1993, he did seek medical attention in relation to pain in his back, but he alleged that he only did so because his supervisor observed him having difficulties performing his duties as a result of back pain. He did not complain of back pain following a motor vehicle accident in April 1993 at that time, but did sustain injuries including a contusion to his forehead and right shoulder that may, as a matter of probability, have given rise to some back pain, especially in a person with a history of (then) recent back injury. He sought medical treatment in July 1993 for back pain with intercostal radiation and in October 1993 following a physical fitness assessment and received various treatments and assessment in the period to February 1994.
53. Whether Mr Karnaghan injured his back “between the shoulder blades” when handling the bomb that injured his right wrist on or about 3 November 1992 is an open question. It is not in dispute that the incident occurred. Plainly, the circumstances of the claimed incident, in which Mr Karnaghan claimed he attempted to prevent a “live” 2000 pound bomb from rolling from its storage pallet, present the possibility for injury to his spine. It is a fact that he injured his right wrist in that incident, as the contemporaneous medical records confirm. That being so, I am willing to accept that the stresses involved were sufficient to cause injury to Mr Karnaghan’s thoracic spine, but whatever occurred did not cause him to experience immediate pain to the extent that he was driven to seek medical attention or was prevented from performing his usual duties at that time.
54. Whether Mr Karnaghan injured his back in the motor vehicle accident on 14 April 1993 is also an open question. The fact is he made no complaint of back pain at the time. Nonetheless, the clinical notes reveal that he hit his right shoulder and head, and suffered from blurred vision and epistaxis the next day. In those circumstances I accept that it is possible that Mr Karnaghan did injure his back, but if that was the case the injury was not sufficient to cause him to complain or seek treatment at that time. Even if I accept Mr Karnaghan’s explanation that he did experience back pain but did not report it for fear of adversely affecting his military career, it is clear that he did not experience severe or disabling pain of clinical significance. It would be reasonable to expect such pain to be expressed during clinical examination, in relation to range of movement, for example. No such finding is recorded in the clinical notes concerning his examination following the accident.
55. Nonetheless, the clinical notes reveal that Mr Karnaghan experienced thoracolumbar pain following activity in 18 January 1993, 19 July 1993 and 23 September 1993, and thereafter complained of persistent thoracic spine stiffness and pain, occasionally radiating to his chest, until at least February 1994 (Exhibits D26/56, D33/68, D36/72, D37/73, D40/76,D41/77, D39/75 and D47/87). On 12 February 1996 he complained of a three day history of activity-related thoracolumbar back pain with “gradual onset over weekend of stiffness/pain” and related a history of similar back pain in 1993 (Exhibits D55/103, D57/106, D58/117, D58/107, D58/114, D58/116 and D58/108). A Periodic Health Assessment on 3 September 1997 noted a history of thoracolumbar back pain since 1993 and recorded that Mr Karnaghan was aerobically fit and was exercising three times per week (Exhibit D75/153). On 19 January 1998 Dr R. Grimmer, CMO, reported “Thoracic back pain since 4WD MVA 1993. Episodes triggered by heavy lifting and injury. Never got to see orthopaedic surgeon due to posting… Chronic ligamentous injury…” (Exhibit D81/163).
56. On 21 January 1998 Dr Duffy reviewed the radiological findings in relation to Mr Karnaghan’s spine and reported that there was a mild thoracoscoliosis centred on T10 and that there had been “minimal progression of the scoliosis over the period [since 1993] of review but again no focal skeletal abnormality can be seen” (Exhibit D82/164).
57. Subsequently, on 3 February 1998 Dr P. Chapman reported (Exhibit D88/170):
“There appears to be a mild hyperaemia in the region of the right side of T8 but there was no associated abnormal osteoblastic activity. Early arthritic change at this site is a possibility. It corresponds to the point of maximal curvature in the thoracic spine. Mildly increased uptake in the region of the spinous process of T4 is most likely due to muscular insertion. Mildly increase uptake in the right L1/2 intervertebral disc region may relate to early degenerative changes. No other significant arthropathy is evident.”
On or about 30 March 1998 Dr R. Johnson, rheumatologist, recorded (Exhibits D 91/173-174):
“Persistent thoracic pain for yrs. Dull constant ache in mid thoracic region with acute… sharp shooting pains around to epigastrium – [precipitated] by some movements, posture, not consistent. O/E: [upper] thoracic kyphosis, mild scoliosis. Tender middle T4, T8-10. Pressure over T8/9 – pain – epigastrium, T6 – subscapular. [Decreased] rotation of thoracic spine, [decreased] lateral flexion – 1/3. – Kyphoscoliosis = focal tenderness. Bone scan mild abnormality at T4/T8… CT Scan – new bone, ossification of ligamentum flavum T4/5, T5/6 and T8/9. Sleeping poorly because of pain. – Few options. The CT suggests degenerative disease. History of injury with MVA (4WD rolled) 3/52 before onset of pain ? significance 1993…”
On 1 July 1999 Dr Johnson reported (Exhibit D98/179):
“I think this fellow is likely to have ongoing and persistent thoracic symptoms. I think there is little doubt from his history that his work in the Store area exacerbates his problems with prolonged standing, lifting and bending certainly worsening his pain.”
58. Dr Stubbs gave oral evidence that it was common for facet joint degeneration to be the cause of pain in the spine that is intercostal, “typically sharp stinging pain wrapping round the ribs”, and was of the opinion that the aching pain of which Mr Karnaghan complained between his shoulder blades was “postural”. Dr Stubbs concluded that Mr Karnaghan’s thoracolumbar pain was likely to be multifactorial.
59. Mr Karnaghan complained of intercostal thoracic pain in July 1993 as a result of twisting in bed, for which he was hospitalised. I am satisfied that such pain was consistent with facet joint degeneration at that time and so find.
60. In the Commission’s submission Mr Karnaghan’s thoracolumbar pain was either the result of an underlying deteriorating condition or it was the result of minor muscle strain that caused a temporary aggravation of an underlying condition which ceased prior to 17 July 2002. The position contended for by the Commission was that Mr Karnaghan’s thoracolumbar pain was, at the highest, the result of activity acting upon an underlying degenerative condition to cause symptomatic pain without advancing, accelerating or aggravating the underlying condition in any material way. As will appear, I do not agree.
61. There is scant evidence that Mr Karnaghan suffered from an underlying constitutional or developmental condition in his thoracolumbar spine prior to the date of his first claimed injury in 1992 or 1993. Mr Karnaghan’s enlistment medical examination in 1990 did not reveal any abnormality in his spine (Exhibits D5-7). There is, however, evidence that Mr Karnaghan suffered thoracic back pain in 1991 following a motor vehicle accident (Exhibit D12/38). I note that there are no references in the medical records of Mr Karnaghan complaining of or seeking treatment for back pain from June 1991 until January 1993 (Exhibit D26/56).
62. In the Commission’s submission reliance was placed, at least in part, on Dr Kervison’s clinical note that Mr Karnaghan had suffered from back pain in his teenage years (Exhibit 36/72). Such symptoms may point to the existence of Scheuermann’s Disease in Mr Karnaghan as the possible cause of his subsequent thoracolumbar kyphoscoliosis. However, I am not persuaded to any such conclusion by Dr Kervison’s clinical note. I have carefully examined Mr Karnaghan’s medical records and am satisfied that Dr Kervison’s note stands alone without corroboration in the material that is before me and is contrary to Mr Karnaghan’s oral evidence. Mr Karnaghan strongly denied that he had suffered back pain as a teenager and the Commission adduced no evidence to corroborate Dr Kervison’s clinical note.
63. Even if Mr Karnaghan did in fact relate such a history to Dr Kervison, I have found that Mr Karnaghan is a poor historian whose evidence cannot be relied upon. Dr Champion was of the opinion that Mr Karnaghan has a life long borderline personality disorder that predisposes him to paranoia. I accept that to be the case and note inconsistencies in Mr Karnaghan’s evidence and the histories obtained from him by doctors since 1993. In his oral evidence, Mr Karnaghan stated that he attempted to hide his back injury in order to protect his military career and only attended doctors in relation to that condition when required to do so. While I do not accept the generality of that proposition on the evidence before me, I do accept that Mr Karnaghan may have coloured the history he gave Dr Kervison for his own purposes at that time and may have exaggerated or disguised his thoracolumbar symptomatology in different circumstances from time to time.
64. Furthermore, even if I was to accept the history pointed to by Dr Kervison’s clinical note, which I do not, the progress of Mr Karnaghan’s symptomatology is not consistent with the usual presentation of Scheuermann’s Disease. Professor Nade gave evidence that while Scheuermann’s Disease may manifest thoracolumbar kyphoscoliosis in men after their teenage years, even in their twenties, the condition is operative in the developing skeleton and does not progress once the skeleton has matured. In Mr Karnaghan’s case the first evidence of mild scoliosis was in 1993 (Exhibit D36/72) and the first evidence of kyphosis was in 1998 (Exhibits D91/173-174), when Mr Karnaghan was 32 years old.
65. Analysis of Mr Karnaghan’s service medical records indicates an active process in Mr Karnaghan’s thoracolumbar spine giving rise to increasing perceptions of thoracolumbar pain over a period of years following the incidents in November 1992 and January 1993 and leading to deterioration in his capacity for work from about 1998. The fact that Mr Karnaghan was absent from work on very few occasions as a result of his thoracolumbar condition, alone, is not sufficient basis on which to conclude that he did not suffer from disabling symptomatology. The evidence is that he suffered from periodic episodes of increased symptomatology following activity and related periods of reduced capacity for work on restricted duties. Nonetheless, it is a fact that he continued to work in the stores area, which involved heavy lifting duties, and was assessed to be satisfactory in periodic physical fitness testing, in September 1997 for example (Exhibit D75/153). I note that on 16 February 2000 a Workplace Assessment reported (Exhibit D106/190):
“[Over the past 12 months LAC Karnaghan’s] disability has had minimal effect in fulfilling his duties and responsibility as a [Warehouse] supplier. His performance has been of a high standard and he maintains a high degree of involvement within the workplace… He is extremely well motivated, conscientious and diligent in his desire to achieve results…”
66. In Mr Karnaghan’s submission the coincidence of work-injury and onset of symptoms of thoracolumbar back pain raises a strong presumption of causation. Such an inference of fact is open unless it is disturbed by evidence adduced by the Commission to the contrary (Watts v Rake (1960) 108 CLR 158).
67. The evidence is that Mr Karnaghan suffered a series of traumas to his spine in varying degrees in the period from approximately 1993 to 2000 that intermittently aggravated the severity of the pain he experienced and caused or materially contributed to the present condition of his thoracolumbar spine. The experience of pain is a subjective phenomenon and the capacity of individuals to endure pain and continue with activities, even activities that may exacerbate the intensity of pain, varies from person to person. That Mr Karnaghan did not take, or require, extended periods of time off work as a result of his back pain, is not evidence that he did not suffer from back pain. The contemporaneous medical evidence strongly suggests that he did (see Exhibits D26/56, D33/68, D37/73 and D55/103, for example).
68. In the Commission’s submission, that medical evidence cannot be relied upon because it was based upon histories and descriptions of pain provided by Mr Karnaghan. I accept that such evidence must, in this case, be treated with caution. However, it would beggar reason and the professional and clinical expertise of each of those doctors who examined and treated Mr Karnaghan during the period of his military service to discount their clinical findings, which have a high degree of consistency, on the basis of the unreliability of the history given in each case by Mr Karnaghan. Furthermore, it would require me to conclude that Mr Karnaghan maintained a lie for no apparent reason from 1993 to the present day. I am neither persuaded nor compelled by the evidence before me to make any such finding.
69. I am satisfied that Mr Karnaghan’s kyphosis was the result of trauma to his thoracic spine which also resulted in facet joint degeneration, both of which biomechanical factors contributed to cause thoracic and intercostal pain, but were not the only cause of the back pain he perceived. The trauma that caused or materially contributed to his kyphosis and facet joint degeneration was not a single event but a series of traumas in varying degrees to which I have already referred during the period of his service.
70. The weight of the medical evidence points to Mr Karnaghan’s thoracolumbar back pain being the result of biomechanical and psychological factors and I so find. On 27 January 1998 Dr Grimmer noted that Mr Karnaghan’s X-ray abnormalities did not reflect “physical findings and disability”.(Exhibit D82/164) Dr Searle gave evidence that Mr Karnaghan suffered from a chronic regional pain syndrome and Dr Mickleburgh and Dr Champion gave evidence that it was likely that Mr Karnaghan’s perception of pain was acting upon his dysthymic disorder and his dysthymic disorder and personality traits were acting upon his perception of pain in a cycle of exacerbating concomitant effects. I accept that analysis and find that Mr Karnaghan’s perception of back pain is in part the product of his psychiatric condition, that is the pain he perceives as real is only in part the result of biomechanical factors.
71. There is no evidence before me that the effects of Mr Karnaghan’s trauma-related thoracolumbar kyphosis and facet joint degeneration ceased during the period in question following 17 July 2002. Nor is there evidence that his thoracolumbar kyphosis and facet joint degeneration, or his dysthymic disorder and related pain sensitivity and somatization of pain, improved on or after that date.
72. Mr Karnaghan’s accepted compensable injuries did not cease to cause him disabling symptomatology on 17 July 2002 or on any day thereafter to the present day. It follows that the Commission had a continuing liability to pay Mr Karnaghan compensation in relation to those accepted injuries on 17 July 2002 which is ongoing today. I so find.
permanent impairment
73. During the hearing Mr Karnaghan conceded his claim for permanent impairment compensation in relation to dysthymic disorder on the basis that further rehabilitative treatment may reduce the degree of any impairment. That is to say, the dysthymic disorder is not yet permanent for the purposes of s 24 of the Act.
74. On that basis, the decision under review, in so far as it denied Mr Karnaghan’s claim for permanent impairment compensation in relation to dysthymic disorder is affirmed.
75. It remains to determine whether Mr Karnaghan is entitled to permanent impairment compensation in relation to his work-related thoracolumbar spine injury.
76. Evidence was adduced on Mr Karnaghan’s behalf concerning degrees of whole person impairment under tables 9.5 and 9.6 of the approved Guide. However, I have found that the disabling thoracolumbar spine pain he perceives is attributable, in part, to his compensable psychiatric disorder. That disorder, it was conceded, may be amenable to improvement by further rehabilitative treatment. Pain is the operative factor of impairment in Mr Karnaghan’s thoracolumbar spine: it is pain that limits his range of movement and it is pain that allegedly causes him to experience difficulties with grades, steps and distance, and I make no findings about that. On the evidence of Dr Mickleburgh and Dr Champion if his psychiatric condition improves with further treatment it could be expected that the degree of pain he perceives as a result of that condition, by processes of somatization or heightened sensitivity, may be reduced. It follows that the degree of Mr Karnaghan’s impairment may be reduced by further treatment of his psychiatric disorder.
77. On that basis, I am satisfied that assessment of the degree of whole person impairment under the approved Guide in relation to Mr Karnaghan’s thoracolumbar spine would, at this stage, be premature. It follows that his thoracolumbar impairment is not yet permanent pursuant to ss 24(2) of the Act and the decision to deny him compensation for permanent impairment in relation to his thoracolumbar spine must be affirmed. I so find.
conclusion
78. Mr Karnaghan is entitled to compensation in relation to the previously accepted injuries to his thoracolumbar spine for which the Commission is liable. That liability did not cease on 17 July 2002 and continues to the present day, during which period Mr Karnaghan continued to suffer from the disabling effects of his compensable injuries. There are no disputed claims in relation to incapacity or medical treatment expenses before me.
79. Mr Karnaghan has not undertaken all reasonable rehabilitative treatment in relation to his accepted dysthymic disorder. In consequence he is not entitled to compensation for permanent impairment in relation to that psychiatric disorder or in relation to his compensable thoracolumbar spine condition as the degree of impairment in both cases may be reduced as a result of such further treatment.
80. Turning to the issue of orders for costs pursuant to ss 67(8) of the Act, this decision is favourable in part to Mr Karnaghan. That being so, I am satisfied that it is appropriate to order the Commission to pay 50 percent of his reasonable costs in there proceedings as taxed or agreed.
81. The matter is remitted to the Commission to determine the amount of compensation, if any, that is payable to Mr Karnaghan.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 15 to 17 November 2004
Date of Decision 1 December 2004
Counsel for the Applicant Mr A. Anforth
Solicitor for the Applicant Mr P. Harris
Counsel for the Respondent Mr S. Whybrow
Solicitor for the Respondent Mr S. Moloney
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