Lampard and Comcare

[2000] AATA 474

DECISION AND REASONS FOR DECISION [2000] AATA 474

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/310

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      TONY LAMPARD  
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member Dr. J.B. Morley, RFD, Member Major-General J.N. Stein, AO Rtd, Member     

Date20 April 2000

PlaceBrisbane

............(Signed)..................................
  D.W. MULLER
   SENIOR MEMBER
CATCHWORDS
WORKERS' COMPENSATION – back injury – natural degeneration – aggravation by Army physical training – partial incapacity for work

REQUEST FOR WRITTEN REASONS FOR DECISION

20 April 2000        Mr. D.W. Muller, Senior Member Dr. J.B. Morley, RFD, Member Major-General J.N. Stein, AO Rtd, Member   

1. This is an application to review a decision to deny a liability for ongoing workers' compensation to Tony Lampard beyond 31 January 1999, the date on which he was discharged from the Army.

2. It is common ground that Mr. Lampard has had a back problem, particularly in the lumbar-sacral region, since about 1995.

3. Prior to his discharge from the Army, Mr. Lampard's back condition had been accepted as having been caused, or at least aggravated, by his Army service.  It is now contended by the respondent that Mr. Lampard's current back problems are associated with naturally occurring degeneration.

4. During his Army service, Mr. Lampard suffered injuries to his back on two occasions.  In 1981 he was struck in the back from behind.  Again in 1991 he was also struck in the back.  Those two injuries seem to have been not very serious.  They probably did not have much to do with Mr. Lampard's current problems.

5. Mr. Lampard worked as a storeman in the Army.  He regularly shifted, lifted and moved heavy objects.  He developed a sore back from time to time as a matter of course.

6. Mr. Lampard's continuing and debilitating back problems started in about 1995, when he was forced by the Army to participate in a heavy physical training schedule.  Apparently, the Army leaders introduced a regime in which all Army personnel, irrespective of age, rank or station, had to embark on a rigorous physical fitness program.  Mr. Lampard suffered back pain from the time that he began the hard training and still so suffers.  The heavy work that he also did as a storeman did not help in his recovery from the training regime.

7. The radiological evidence shows that in 1994/95, Mr. Lampard was suffering from very minor degeneration in his spine.  By 1998, he had some increased degeneration but it was still fairly mild.

8. The Tribunal was troubled by the fact that it accepted Mr. Lampard as an honest, reliable witness, but that his description of his back problems indicated that they were more serious than the radiological findings suggested.  The apparent contradiction was solved by Dr. Peter Johnstone, orthopaedic surgeon.  Dr. Johnstone was of the opinion that although Mr. Lampard has some degree of degeneration in his spine and that heavy physical activities would have aggravated that condition, it is more probable than not that Mr. Lampard also suffered significant changes to the muscles and ligaments surrounding his spine and that those changes are the major cause of his current back problems.  The radiographic evidence would not show up changes to muscles and ligaments.

9. Dr. Johnstone gave evidence that aggravation of the skeletal part of the degeneration can sometimes take months, even years, to recover.  Dr. Johnstone also said that damage to ligaments can sometimes take years to repair.

10. In Mr. Lampard's case it is clear from the evidence that he will eventually recover from any muscular or ligamentous damage and that any ongoing permanent impairment in the future will be due to normal degenerative changes.  It will not be compensable.

11. Nevertheless, Mr. Lampard is still suffering from the combined effects of an aggravation of the condition of his degenerative spine, damage to his back muscles and damage to the ligaments associated with his back.

12. Currently, Mr. Lampard has a partial incapacity for work.  He is working 16 hours per week but would do more if he could get it.  His partial incapacity for work will eventually disappear when he recovers from the injuries described above.

13. The Tribunal gives Mr. Lampard the benefit of the doubt so far as the time needed to recover from his injuries is concerned, namely four years from the date of his discharge, that is until 31 January 2003.

    I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member;   Dr. J.B. Morley, RFD, Member
    Major-General J.N. Stein, AO Rtd, Member

    Signed:         .....................................................................................
               R. Hayes, Associate

    Date/s of Hearing  19,20 April 2000
    Date of Decision  20 April 2000 (request for written reasons)
    Counsel for the Applicant        Mr. R. Hume
    Solicitor for the Applicant         D'Arcys
    Counsel for the Respondent    Mr. A. Horneman-Wren
    Solicitor for the Respondent    Australian Government Solicitor