Kevin Egan and Telstra Corporation Limited
[2014] AATA 472
[2014] AATA 472
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3890
Re
Kevin Egan
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Date 14 July 2014 Place Brisbane The Tribunal affirms the decision under review.
...............................Sgd.....................................
Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
CATCHWORDS
WORKERS’ COMPENSATION – Claim for permanent impairment – Liability accepted for 1993 injury of lower back strain L5/S1 – Further injury to spine in 2011 an aggravation of underlying degenerative disease – Condition unrelated to compensable condition – Application of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)(“the Guide”) – Whole person impairment rating under Table 9.17 of the Guide – Threshold requirement of 10% for payment of compensation for permanent impairment not satisfied – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 24, 27, 28
CASES
Bryant v Military Rehabilitation and Compensation (2008) 104 ALD 39
Jordan v Australian Postal Corporation (2007) 99 ALD 303
SECONDARY MATERIALS
Guide to Assessment of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
14 July 2014
BACKGROUND
In accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), Telstra Corporation Limited (“the respondent”) accepted liability for
Kevin Egan’s (“the applicant”) “lower back strain L5/S1” as being related to an injury he suffered in October 1993 while he was working for the respondent. On 12 June 2012, the applicant lodged a claim for permanent impairment and non-economic loss under
ss 24 and 27, respectively, of the Act. In a determination on 15 May 2013, the respondent rejected that claim and this was affirmed in a reviewable decision on 16 July 2013.
LEGISLATION AND ISSUES
The provisions of the Act relevant in this matter read:
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss; and
(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
27 Compensation for non‑economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15, 000 x A) + ($15, 000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non‑economic loss suffered by the employee.
(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non‑economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection
Comcare has published the “Guide to the Assessment of the Degree of Permanent Impairment” (Edition 2.1) (“the Guide”) which sets out the criteria by reference to which the degree of the permanent impairment and degree of non‑economic loss of an employee resulting from an injury shall be determined[1] under Table 9.17 which reads:
Table 9.17: Lumbar spine—diagnosis-related estimates
[1] See s 28 of the Act.
% WPI
Criteria
0
No significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness
or
No fractures.
8
Clinical history and examination findings compatible with a specific injury. Findings may include: significant muscle guarding or spasm; asymmetric loss of range of motion; or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings.
No alteration of the structural integrity and no significant radiculopathy
or
Prior clinically significant radiculopathy and radiologically demonstrated disc herniation, consistent with the radiculopathy, but radiculopathy no longer present following conservative treatment
or
Fractures:
> Compression fracture of one vertebral body of less than 25%
> Posterior element fracture without dislocation (not developmental spondylolysis) that has healed without alteration of motion segment integrity
> Spinous or transverse process fracture with displacement without a vertebral body fracture, with no disruption of the spinal canal.
10 - 13
Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, alteration of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location (may be verified by electrodiagnostic findings)
or
History of a herniated disc at the level and on the side consistent with objective clinical findings, associated with radiculopathy, or employees who have had surgery for radiculopathy but are now asymptomatic
or
Fractures:
> Compression fracture of one vertebral body of 25% to 50%—healed without alteration of structural integrity
> Posterior element fracture with displacement disrupting the spinal canal —healed without alteration of structural integrity.
The definition of “radiculopathy” is also provided in the Guide:[2]
Radiculopathy is significant alteration in the function of a nerve root or nerve roots, and is usually caused by pressure on one or several nerve roots. The diagnosis requires a dermatomal distribution of pain, numbness, and/or paraesthesia. A root tension sign is usually positive. A diagnosis of herniated disc must be substantiated by an appropriate finding on an imaging study. The presence of findings on an imaging study is insufficient to make the diagnosis of radiculopathy. There must also be clinical evidence as described above.
[2] See page 151 of the Guide.
The issue for determination is whether the symptoms which the applicant currently experiences are referable to his accepted lower back condition and, if so, what the associated degree of impairment is under Table 9.17 of the Guide.
EVIDENCE
The applicant
The applicant completed a statement on 3 June 2014 and gave the following evidence. Since his injury in 1993, he has continued to have pain in his back which periodically becomes worse before settling again. He described these episodes as “flare-ups”.
They occurred “at least every few months” but sometimes they might be spaced six months apart. Mostly, he treated himself for the episodes with medication, exercise and by using a TENS machine. At times he would visit his general practitioner (“GP”),
Dr Ian Johnson, and was referred to various specialists over the years. These included musculoskeletal specialist Dr P Watson whom he saw many times until 2005. Dr Watson administered at least 12 cortisone injections to him. He has also seen a physiotherapist, a chiropractor and a psychologist and has had Bowen therapy, steroid and epidural injections, pain blocks and a wide range of medications. He attended a gym from 1993 to 2005. He recalled a flare-up when he was a passenger on a train in October 1999. This occurred as he was rising from a seat. In late 1999, he saw Dr Roger Parkington who advised him to report his flare-ups to the respondent. The applicant did this, and in evidence were some 50 emails sent by the applicant to his various supervisors from
1999 to 2011.
In February 2011, the applicant suffered another flare-up in his back while at work when he was rising from a chair. He took about a week off work but, because his pain would not settle, his GP referred him to Dr Watson and he received a further cortisone injection. In September 2011, his GP referred him to neurosurgeon, Dr Ross Gurgo. He underwent an MRI scan and then, on 6 October 2011, Dr Gurgo performed surgery: a left L5/S1 micro discectomy and left S1 nerve root decompression. Relief from pain was immediate but this lasted only about one week. Attempts to return to work were not successful and he was made redundant by the respondent on 30 November 2011. His pain continued thereafter and he had an epidural injection in January 2012.
Effects and symptoms from his back condition were described by him as including sleeping difficulties, limitations on sitting, standing and walking as well as difficulties climbing stairs and driving. He has limitations in his ability to do housework and gardening and he needs assistance from his wife when dressing, in particular with his footwear and underclothing.
Medical evidence
GP practice
In this practice, the applicant has been treated by Dr Johnson and Dr Gregory Hales. Their clinical notes were tendered in evidence for the period from December 2000 until April 2012. Therein, pain in the applicant’s lower back is noted on 1 October 2007,
7 November 2007, 27 March 2008, 5 February 2010, 28 February 2011, 4 April 2011,
14 May 2011, 12 August 2011, 22 August 2011, 26 August 2011, 12 September 2011,
5 December 2011, 24 January 2012 and 29 February 2012.
The entry on 28 February 2011 by Dr Johnson reads: “Arose from chair on Sat & got sudden pain lower back, no radiation. o/e spasm +”. On 14 May 2011, Dr Hales wrote: “hurt back 16 years ago lifting cable drum recent disc protrusion- referred by Dr Watson - had cortisone, has pain in L buttock, Dr Watson says it is bursitis”. On 3 August 2011, Dr Johnson described “a lot of pain in post L thigh”. On 12 August 2011, he felt that this pain was referred from the applicant’s back. On 22 August 2011, the note reads: “hurt back in Feb – pain in L buttock down leg… had back pain 16 yr ago – got better.”
Dr Johnson reported on 21 September 2011 that the applicant presented on
28 February 2011 following sudden pain after rising from a chair at his work with no radiation of pain. Dr Johnson’s opinion was that this was an exacerbation of his 1993 injury. Dr Gregory Hales also reported on 21 September 2011. He diagnosed a left L5/S1 disc protrusion with left S1 nerve root compression. On 9 October 2012, Dr Hales reported that the applicant had a lumbar disc injury with ongoing sciatica.
Dr Watson (musculoskeletal specialist)
In evidence were reports and progress notes of Dr Watson. His progress notes include the following:
4 January 1995: 4 days ago developed (LBP) - both legs felt heavy;
14 September 1995: low back had become more sore and now “both legs dead”;
9 May 1996: LBP and difficulty flexing L leg pain Area of pain in in lower L fascia;
10 July 1996: LBP… spasms 2, 3 per week;
23 September 1998: “dead” heavy legs no tingling or weakness;
8 April 1999: stiff / spasm in back no leg pain/ weakness;
4 October 1999: back ached last week but on Friday got to get up from train seat when developed acute L spine pain à both butt R > L;
19 July 2004: LBP then butt;
7 April 2011: 4-5 weeks ago got off a chair pain lower lumbar à butt;
19 January 2012: LBP butt, thigh, leg and foot pain burning.
Dr Watson reported on 8 April 2011 that, four weeks earlier, the applicant twisted his lower back getting off a chair. Dr Watson noted marked tenderness in the posterior medial iliac crest and the interspinous ligament of L4/5 but that remaining examination of the lumbar spine and hips was normal.
A report, dated 31 August 2011, by Dr Watson to the applicant’s GP reads:
Kevin Egan saw me again yesterday. CT lumbar spine indicated a left lateral disc protrusion L5/S1 which explains his S1 radiculopathy. Although this started as back and hamstring pain a week or so ago this has now extended to his leg with numbness in the lateral foot.
Other reports from Dr Watson were dated 1 November 1995, 27 October 1998 and
20 September 1999. In the first of those, he referred to a CT scan from April 1994 revealing a “broad-based posterior L5-S1 disc protrusion” which was again noted in
June 1994. In the second of those reports, Dr Watson described “low back pain radiating into the upper right leg with no paraesthesia or weakness”. He also described lesions on radiological investigations in April and June 1994 which “appear to be confined without causing nerve root symptoms”. In the third of those reports, Dr Watson again noted that the 1994 CT scans revealed “no signs of nerve root compression”.
Dr Ross Gurgo (neurosurgeon)
Dr Gurgo, completed reports on 16 September 2011 and 11 February 2013. In the first of those reports, he referred to the history of the applicant’s back pain and noted that “[t]he most recent episode started in February this year when he suffered recurrent lower back pain, left sided leg pain and buttock pain”. Dr Gurgo wrote that left sided leg pain was the applicant’s main symptomatology. In his second report, in response to a series of questions from the respondent, Dr Gurgo wrote that the applicant did not suffer from the same symptoms he had prior to surgery on 6 October 2011 as the applicant had advised that “he is improved clinically and his lower limb radicular symptoms have settled down”.
Dr Michael Coroneos (neurosurgeon)
Dr Coroneos completed a report on 1 February 2012. He noted that the applicant suffered a right mid-thigh injury many years before. He also noted that Dr Gurgo had performed a left L5/S1 laminectomy/discectomy. He examined a post-operative MRI which revealed that the S1 root is no longer compressed, that the foramen is capacious and that the applicant continues to complain of severe left sciatica.
Dr Roger Parkington (orthopaedic surgeon)
Dr Parkington completed reports on 4 November 1999 and 27 November 2003. He referred to the applicant’s history of low back pain and to a flare-up in October 1999 when he rose from a sitting position on a train and he felt “low back pain radiating into the left buttock”. He described the applicant’s symptoms as low back pain radiating into both buttocks when bad, “tired and heavy and weak” legs but “no numbness”.
He referred to an X-ray dated 12 October 1999 which demonstrated a “slight narrowing of the L5/S1 disc space”. Dr Parkington described the incident on the train as an “aggravation of a pre-existing underlying condition in his back that resulted in a recurrence of his original symptoms and was his most severe attack of pain.” He referred to the aggravation as being intermittent and permanent. In the second report, he wrote:
He experiences intermittent attacks and in between attacks he is symptom–free. These attacks can be triggered off by simple activities of daily living.
Dr Gordon Stuart (neurosurgeon)
Dr Stuart completed reports on 8 April 2013 and 10 February 2014. He also gave oral evidence. Dr Stuart noted the history of the applicant’s back pain from 1993 and the development of pain in February 2011. He noted that the applicant underwent surgery in October 2011 with a good result for short period and then a return to pain “with a vengeance”. He referred to the applicant’s current symptoms as involving the lower back and left buttock with radiation down the back of the leg to the calf, foot and toes.
His opinion was that the applicant suffers from degenerative disease of the lumbosacral spine which he described as a constitutional condition and that his current symptoms are not attributable to his work injury in 1993. In relation to nerve root compression,
Dr Stuart wrote:
I refer to radiology reports as recorded by Dr Parkington, Consultant Orthopaedic surgeon in his report of 4 November 1999, records CT scan lumbosacral spine 2 November 1994, normal. CT scan of lumbosacral spine on 28 April 1994 was normal. X-ray of lumbosacral spine of 12 October 1999, this showed loss of the normal lordosis and there was a tilt to the left.
There was a slight narrowing of the L5/S1 disc space. The remainder of the lumbar spine was normal as these findings were regarded as being normal. The current symptoms complained of by Mr Egan that is sciatica and radiculopathy cannot arise from this compression.
…I consider that there was a temporary aggravation of degenerative disease of the lumbosacral spine in 1993 but this aggravation would have long since ceased and ongoing symptoms were due to degenerative disease of the lumbosacral spine.
…he underwent surgery for a disc herniation in 2011 or 2012 and this disc herniation was not present initially following the injury in 1993 but one can assume it was due to the natural progression of degenerative disease of the lumbosacral spine and I comment that all disc herniations are degenerative in nature.
In his evidence, Dr Stuart confirmed the opinions expressed in his reports. He accepted that the applicant had no back pain prior to the incident in 1993. The applicant then experienced some trauma to his spine in 1993 but this settled. He then had further exacerbations which also settled and then he had a more significant episode of trauma to the spine in February 2011. He said that most people have degeneration of the spine which may be asymptomatic until trauma is experienced and that the L4/S1 joint was the most common site of degeneration. He said this may well be minor trauma which, in some people, can have more serious consequences than in others. Dr Stuart’s opinion was that the applicant did not demonstrate disc herniation until 9 September 2011 which was two months after he developed left sciatic-type pain.
Dr Stuart’s opinion was that the criteria for a Whole Person Impairment (“WPI”) rating of 10-13% in Table 9.17 were not met by the applicant because there were no verifiable signs of significant radiculopathy even though there was a history of herniation. He noted the various references by the applicant to “dead legs” and “numb legs”. He said that this was a very subjective description by the applicant, that there was no organic basis for those symptoms and that it was not specific to a dermatome. He also noted that there were signs that pointed to an absence of significant radiculopathy as that term is defined in the Guide. He described non-verifiable radiculopathy because these was no absence of ankle jerk, no muscle wasting, no measurable wasting of his calves, some sensory disturbance but not anaesthesia and an ability to stand on his toes. In relation to impairment, Dr Stuart concluded the appropriate Table in the Guide was Table 9.17 and that the appropriate rating thereunder for the applicant’s symptoms was 8%. However, because the applicant’s current symptoms are not related to the applicant’s employment, Dr Stuart concluded that a WPI of 0% should be adopted.
Dr Scott Campbell (neurosurgeon)
Dr Campbell completed a report on 25 November 2013and gave oral evidence. He noted that a CT scan of the applicant in 1994 revealed an L5/S1 disc protrusion at that time and that his diagnosis had now became one of L5/S1 disc protrusion requiring surgery. He wrote that the applicant’s back pain and left sciatica occur daily and that his symptoms are associated numbness and hypersensitivity of the left foot which causes difficulty wearing shoes. Dr Campbell reported that the applicant’s leg numbness had its onset in 1993 and that his sciatica was present from 2011. His opinion was that his current symptoms are related to the work injury he sustained in 1993.
In his evidence, Dr Campbell said that he had not been aware of the incident in February 2011 when the applicant again hurt his back. He said that, following a flare up from minor trauma, 95% of cases would settle rapidly leaving 5% which do not. He amended his assessment of the applicant’s impairment as measured in the Tables under the Guide. In his report he allocated 13% under Table 9.17 of the Guide and, because of his ankle pain, he added a further 3% under Table 9.6.1 of the Guide the assessment. This was a WPI total of 16%. In his evidence, he accepted that the additional 3% was not applicable and that, because of contribution to the applicant’s back condition from wear and tear to the spine since 1993, he believed that the 13% under Table 9.17 should be discounted by 30-40% leaving a WPI of less than 10% under Table 9.17 of the Guide.
Test results
An x-ray report, dated 22 August 2011 concluded: “left lateral disc protrusion L5/S1 with compromise of the S1 nerve root left side. Minimal abnormality otherwise”. An MRI report, dated 9 September 2011 concluded: “Degenerative disc L5/S1 with prominent left side disc herniation impinging on left S1 nerve root.”
Other evidence
The many emails in evidence from the applicant to his various supervisors record that he continued to experience pain in his back. As the applicant said in his evidence, these messages advised of further flare ups of his back condition and, in some of these, he also advised the medication and treatments he was undertaking.
Statutory declarations made by some of the applicant’s supervisors were in evidence. On 12 January 2011, Glenda Shelton was in that capacity in the applicant’s final 2½ years with the respondent. She described his complaints of back pain and the need to for him to use bespoke desk/chair arrangements to assist him. She advised that the applicant had kept her advised at all times about his condition. Other statutory declarations, all completed in November 2011, confirm that the applicant had difficulties at work with limitations on sitting and standing.
SUBMISSIONS
Mr Ilan Klevansky
For the applicant, Mr Klevansky submitted that, as to the relationship of the applicant’s current symptoms to his employment, preference should be given to the opinion of
Dr Campbell where it differs from that of Dr Stuart. He submitted that they were in agreement that the applicant had no history of any back pain prior to the incident at work in 1993 and that it would have remained asymptomatic except for the 1993 trauma. While Dr Stuart considered that the effects of that trauma would have resolved in three to six months, Dr Campbell’s opinion was they remained with the applicant and were aggravated from time to time with subsequent life events. Mr Klevansky submitted that the presence of a long term continuing impact of the applicant’s back condition was consistent with the evidence provided by his work colleagues.
Mr Klevansky submitted that Dr Campbell’s adoption of the 13% rating under Table 9.17 of the Guide was appropriate but also submitted that no apportionment was applicable in this case under that Table. He accepted that a rating under Table 9.6.1 of the Guide could not be used in conjunction with a rating under Table 9.17 thereof. He also submitted that the discounting approach adopted by Dr Campbell was inconsistent with authority and that the rating of 13% should be maintained. He submitted that all of the requirements of s 24 of the Act were met and that the decision under review ought be set aside, accordingly, and the matter remitted to the respondent for the relevant calculations to be made.
Mr Charles Clark
For the respondent, Mr Clark submitted that the opinion of Dr Stuart should be adopted. This was that the applicant suffers from degenerative disease of the lumbosacral spine which is a constitutional condition and which was temporarily exacerbated on various occasions over the years including in 1993 and 2011. These exacerbations settled and the underlying degenerative condition remained unchanged so that the applicant’s current presentation of symptoms is unrelated to the condition which was accepted as being work-related in 1993. He submitted that there were many inconsistencies in the applicant’s evidence concerning the radiation of pain into his lower limbs. He submitted that there was clear evidence, relied on by Dr Stuart, that the sciatic effects of the lumbar spinal condition were referable to the 2011 incident and not before. Mr Clark submitted that Dr Campbell also identified this in 2011 and 2012 but, significantly, he had not been made aware of the 2011 incident.
In relation to impairment, Mr Clark submitted that Dr Stuart’s greater understanding and appropriate application of the Tables in the Guide when compared with that of
Dr Campbell was demonstrated during the hearing. In the event that we accepted that the 1993 injury was responsible for the applicant’s current symptoms, the appropriate rating, he submitted, was that adopted by Dr Stuart of 8% under Table 9.17 of the Guide. It followed that the applicant did not satisfy the terms of s 24 of the Act and the decision under review ought be affirmed.
CONSIDERATION
Under s 24(1) of the Act, the respondent is liable to pay compensation to an employee where a compensable injury results in a permanent impairment. The medical evidence as to whether the applicant’s current impairment results from the injury for which the respondent has accepted liability is that of Dr Stuart and Dr Campbell. Each of them accepted that the applicant had underlying degeneration of the spine which was asymptomatic prior to the injury in 1993. Each of them referred to the initial trauma in 1993, the subsequent “flare-ups” and the periods in between when symptoms settled.
Dr Stuart’s opinion was that each of those flare-ups was a temporary aggravation of the underlying degenerative disease of the lumbosacral spine and that the effects of the initial and each subsequent aggravation had ceased prior to 2011. He noted the more significant episode of trauma to the spine in February 2011 which gave rise to a disc herniation and which had not been present following the injury in 1993. He said that all disc herniations are degenerative in nature, that this was the natural progression of degenerative disease of the lumbosacral spine and that the L5/S1 joint was the most common site of degeneration. He noted the various references by the applicant to “dead legs”, “numb legs” and pain in the testes. His opinion was that this was a very subjective description by the applicant, that there was no organic basis for those symptoms and that it was not specific to a dermatome.
Dr Stuart’s opinion was that the applicant’s WPI impairment on the basis of a relationship to his employment with the respondent was 0%. He concluded that the criteria for a rating of 10-13% in Table 9.17 of the Guide were not met by the applicant. This was because there were no signs of significant radiculopathy. Indeed, he described this as non-verifiable radiculopathy. In that regard, he said that it was relevant that his examination of the applicant revealed no absence of ankle jerk, no muscle wasting, no measurable wasting of his calves, some sensory disturbance but not anaesthesia and an ability to stand on his toes. Based on his understanding of the criteria in Table 9.17 of the Guide and the definition of the term radiculopathy in the Guide,[3] those factors meant that radiculopathy was not present in the applicant to a significant level and that the highest rating under that Table, if there were a work relationship to his impairment, was 8%.
[3] See page 151 of the Guide.
While Dr Campbell was aware of the various flare-ups in the applicant’s back over the years since 1993, he agreed that he had not been aware of the incident in February 2011. That is consistent with the terms of his briefing letter which, in detailing the history of the applicant’s injury, makes no specific reference to the 2011 incident although it was referred to in some of the materials enclosed with that letter.[4] Dr Campbell referred to the applicant’s current leg symptoms and his opinion was that his leg numbness had its onset in 1993 and that he now had sciatica, that his current symptoms flow from his L5/S1 disc protrusion requiring surgery and that this is related to the work injury he sustained in 1993.
[4] See the briefing letter, dated 22 November 2011 (attached to exhibit 12).
In this matter, we prefer the opinions expressed by Dr Stuart to those of Dr Campbell.
Dr Stuart was aware of the incident experienced by the applicant in February 2011 and described it as being more significant than the 1993 and later incidents which precipitated subsequent flare ups. Dr Campbell was aware of the consequences of the February 2011 incident as revealed in his diagnosis of L5/S1 disc protrusion requiring surgery. However, his evidence was that he had not been aware of the incident itself. We are satisfied, on Dr Stuart’s evidence, that the 2011 incident was yet another flare up of the applicant’s underlying degenerative lumbar spine condition.
The applicant’s evidence was that, after he saw Dr Parkington in 1999, he advised his supervisors on each occasion that he had a flare-up of back pain. This was done be emails which were in evidence. The messages sent between September 1999 and July 2004 have two intervals of six months each and there are several of up to four months. The messages sent between March 2005 and March 2011 have intervals of 8 months,
7 months, 5 months and several more of up to four months. That is consistent with the opinion of Dr Parkington that the applicant suffers intermittent attacks and that between these he is symptom free. We are satisfied that this history of long intervals between flare-ups is also consistent with the opinion of Dr Stuart that they represent periodic manifestations of underlying spinal degeneration.
We have noted Dr Johnson’s opinion, on 21 September 2011, that the applicant’s condition was an exacerbation of his 1993 injury. However, we also note his record of the history of the 1993 injury when he wrote, on 22 August 2011, that the back pain
16 years earlier had “got better”.
Dr Watson’s report in 1999 refers to his observations in 1994 of an L5/S1 disc protrusion but with no signs of nerve root compression at that time. In his report dated
31 August 2011, Dr Watson noted that the L5/S1 disc protrusion had associated radiculopathy. While that may be seen as being in conflict with the opinion of Dr Stuart, we are persuaded that Dr Stuart’s examination revealed an absence of any significant radiculopathy.
Dr Coroneos’ opinion was that, post-operatively, there was no longer compression of the S1 root but he noted that the applicant continued to complain of severe left sciatica.
Dr Campbell’s analysis of the applicant’s impairment revealed a lack of familiarity with the operation of the Tables in the Guide. He combined his allocated ratings of 3% and 13% but the Guide provides that, in a case such as the applicant’s, Table 9.6.1 cannot be used in conjunction with Table 9.17 of the Guide. We also accept Mr Klevansky’s submission that the WPI assessment in Table 9.17 of the Guide is not open to discounting in the manner adopted by Dr Campbell.[5] The results obtained by Dr Stuart in his examination and described in his evidence clearly demonstrate an absence of significant radiculopathy. The first two criteria at the 10-13% level of Table 9.17 of the Guide require, respectively, “significant signs of radiculopathy” and “objective clinical findings, associated with radiculopathy”. We are satisfied that these criteria are not met in the applicant’s case.
[5] See Jordan v Australian Postal Corporation (2007) 99 ALD 303 and Bryant v Military Rehabilitation and Compensation (2008) 104 ALD 39.
We are satisfied that the applicant’s current impairment is an aggravation of his underlying degenerative disease of the lumbar spine and is not related to his compensable condition of “low back strain L5/S1”. We are also satisfied that an assessment of the level of his current impairment is less than WPI 10% under Table 9.17 of the Guide. This means that the applicant does not meet the requirements of s 24 of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member.............................Sgd.....................................
Associate
Dated 14 July 2014
Date of hearing 13 June 2014 Counsel for the Applicant Mr Ilan Klevansky Solicitors for the Applicant Slater & Gordon Counsel for the Respondent Mr Charles Clark Solicitors for the Respondent Sparke Helmore
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