Mansfield and Military Rehabilitation and Compensation Commission

[2005] AATA 223

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2005] AATA 223

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1074

GENERAL ADMINISTRATION  DIVISION		)
Re		MICHAEL MANSFIELD

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

Tribunal Senior Member, Mrs Josephine Kelly and Dr P Lynch

Date15 March 2005

PlaceSydney

Decision     

1. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the reviewable decision of the Respondent made on 21 June 2004 is set aside. Substituted for that decision is the decision that:

a)Mr Mansfield has a 10% whole person impairment pursuant to clause 9.6 of the Guide to the Assessment of the degree of permanent impairment.

b)Mr Mansfield is accordingly entitled to compensation pursuant to s 24 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

c)The matter is remitted for recalculation pursuant to s 27 of the Act.

2.Pursuant to s 67 of the Act, the Respondent is to pay the Applicant’s

costs of the proceedings.  

[sgd]  Senior Member, Mrs Josephine Kelly

Presiding Member

CATCHWORDS

WORKER’S COMPENSATION – serviceman - motor vehicle accident in Guam while on duty – injuries to left side and lower back – permanent impairment claim – medical evidence supported 10 per cent whole person impairment – decision of respondent set aside – costs awarded.

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 43(1)(c)

Safety Rehabilitation and Compensation Act 1988 ss 21, 24 and 27

CASELAW

Comcare v Amorebieta 1996 66 FCR 83

REASONS FOR DECISION

15 March 2005

  Senior Member, Mrs Josephine Kelly  

  Dr P Lynch

Introduction

1. The applicant, Mr Mansfield, is claiming compensation for permanent impairment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). The issue in these proceedings is the extent of percentage whole person impairment suffered by him in relation to his lower back resulting from being run into by a car when riding a bicycle on the island of Guam. At the time he was in the Navy. The relevant table under the guide to the assessment of the degree of permanent impairment is 9.6 spine, and in particular thoraco lumbar spine.

Background

2.  The following is not in dispute.  Mr Mansfield was born on 30 October 1958 and enlisted with the Navy on 14 April 1975 at the age of 16 (document T6).  On 3 April 1999 whilst on duty in Guam he was involved in a motor vehicle accident.  He was riding a bicycle when he was hit from behind by a car.  He landed heavily hitting his left side (Document T6).  A Guam police accident report dated 3 April 1999 confirms that Mr Mansfield was admitted to hospital on 3 April 1999 complaining of pain and abrasions to the left side of his body.  Examination at the time of admission showed that he had tenderness in the cervical spine with full rotation of movement and tenderness in the lumbar sacral spine (document T4, page 13

3.  Naval medical records show that Mr Mansfield received treatment up until June 1999 for lower back pain and then proceeded to duty at sea for the months of August and September 1999 (Document T4).  On his return in October 1999 Mr Mansfield again sought treatment for lower back pain.  Entries in his medical records at that time note that he was unable to resume cycling, running and other activities without pain to his lower back (T4, page 19).  Orthopaedic surgeon Dr O'Reilly reported that the applicant gave a history of having continued to suffer lower back pain since his accident and referred him for a CT scan  (T4, page 21).

4.  A CT scan of the applicant taken on 9 February 2000 noted a broad based disc protrusion at the L4/5 level, mildly indenting the thecal sac with suggestion of an annular tear and small bulge at the L3/4 and L5/S1 discs.  Dr O'Reilly referred the applicant to neurosurgeon Dr M. Pell who reported on 3 March 2000 that Mr Mansfield had suffered from persistent back pain since his accident in April 1999.  Dr Pell concluded that Mr Mansfield would not require surgery and would benefit from a bone scan but made no other diagnosis.

5.  Mr Mansfield continued to obtain medical treatment till the date of his discharge from the Navy on 7 July 2003.  This treatment included physiotherapy and injections into the lower spine as well as medication.  On 18 June 2003 Mr Mansfield lodged a claim for compensation with respect to the lower back pain which he attributed to his motor vehicle accident in April 1999.  He advised the restrictions he suffered due to the consistent lower back pain, including sleeping on his stomach, restrictions in the freestyle swimming, sitting up straight in a chair, walking, standing for any length of time, intimacy with a partner, cycling and reaching above height.  He also advised that he managed his pain with the use of prescription panadeine forte and tramal. On 16 August 2003 liability was accepted for the broad based disc bulge L4/5 level with mild indentation of the thecal sac (T10). 

6. On or about 21 August 2003 the applicant lodged a claim for permanent impairment arising from his injury. When that assessment was carried out the respondent, the Military Rehabilitation Compensation Commission, (“the MRCC”), denied liability for any permanent impairment arising as a result of the injury, T16. This decision was because Mr Mansfield did not reach the 10 percent of whole person impairment required under section 24 of the Act.

7.  On 19 August 2003 Dr Thalagala provided a medical report diagnosing the applicant to be suffering from intervertebral disc bulge at the L4/5 level with indentation of the thecal sac.  That doctor noted that Mr Mansfield suffered from lower lumbar back muscle pain and discomfort and reported that he believed the condition to be permanent.  That doctor also stated that Mr Mansfield's impairment was mild only with no significant loss of range of movement (T11).  Dr Thalagala is a Navy doctor.

8.  On 21 August 2003 Mr Mansfield completed a non-economic loss questionnaire in which he stated that he had back symptoms on a regular basis and his ability to perform normal activities reduced during those episodes.  He found that he now had to restrict himself to activities that did not impact on his lower back.  The applicant also stated he had previously been very active and involved in several active groups including driving, cycling and running and could no longer continue those sports due directly to the injury (T12).

9.  The MRCC referred Mr Mansfield to orthopaedic surgeon Dr James Evans for assessment.  Dr Evans reported on 21 October 2003 that upon examination Mr Mansfield's lower back movement were:

“quite well attempted and in fact he could bend forward so that his fingertips could reach the mid and lower shins and he doesn’tt complain of any pain as he does this. “

10.  Dr Evans noted that Mr Mansfield had tenderness at the L4/5 level centrally and to each side but not too much.  He concluded that the applicant suffered from a whole person impairment of 5 percent and that the injury was permanent but not likely to deteriorate. I note that we have also had the benefit of oral evidence from Dr Evans this morning.

11.  On 10 December 2003 Mr Mansfield lodged a request for a reconsideration which was supported by a report from Dr Mario Benanzio, orthopaedic surgeon dated 20 March 2004 (T21).  I note that we have had the benefit of oral evidence from that doctor.  Dr Benanzio noted that the applicant's weight and posture were normal and he was right handed and walked without a limp.  He also noted that:

“Thoracolumbar spine is in line.  Movements are significantly restricted with fingertips reaching the knees in flexion,  and extension apparently impossible.  Straight leg raising is 90 degrees. Jerks, sensitivity and muscle power are normal.”

12.  Dr Benanzio's opinion expressed on 20 March 2004 was that:

“According to the history as given to me the patient has experienced low back symptoms ever since the accident in April 1997.” (I note that clearly should have been 1999 and no point has been taken in relation to it.)  “Discomfort has never radiated to the lower limb and he has never had symptoms suggesting radiculpathy. .The lumbar spine CT scan of 9 February 2000 put in evidence L4/5 disc pathology as described above.  The history indicates that the accident of April 1997 was a substantial contributing factor to his present symptoms.  According to the clinical presentation on 11 March 2004 there is loss of half the normal range of movements of the thoracolumbar spine (fingertips reaching the knees in flexion and extension apparently impossible) attracting 15 percent whole person impairment according to the Comcare table 9.6  From the orthopaedic point of view the patient is permanently unfit for activities requiring back strains, and in particular repeated bending or lifting, and sitting or walking for long periods.  Treatment is conservative. He could benefit from hydrotherapy.  I do not foresee the need for surgery.  The back condition appears to have stabilised.” (T21, page 85).

13.  On the basis of these finding Dr Benanzio confirmed that:

“This patient suffers from lower back impairment as a result of the accident in April 1997.  All reasonable rehabilitative treatment has been undertaken.  The impairment is permanent.  The degree of whole-person impairment has stabilised at 15 percent.”

14.  On 21 June 2004, the review officer affirmed the determination under review relying on the evidence of Dr Evans and Dr Thalagala, who both agreed that Mr Mansfield's impairment was relatively minor although permanent.

15.  On 7 December 2004, Mr Mansfield was re-examined by Dr Evans, the report of which became exhibit R1.  The doctor at that time found that Mr Mansfield had improved since he last saw him.  Dr Evans maintained that the applicant had no more than 5 per cent impairment as a result of his injury of 3 April 1999, and that the applicant's condition was likely to improve with time.

16.  When Dr Evans saw Mr Mansfield on that occasion, flexion was to the middle and upper shins, and the doctor agreed it may have been a bad day.

Consideration

17. Section 24 (7) of the Safety Rehabilitation Compensation Act provides that:

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.

18. For Mr Mansfield it is contended variously that as he suffers from a permanent impairment of 10 per cent or 15 per cent, or on submissions today it has been stabilised at 10 per cent, he is entitled to compensation with respect to the permanent impairment under section 21 of the Act. For the MRCC, it is contended that Mr Mansfield is not entitled to compensation for permanent impairment as it is assessed at 5 per cent or less.

19.  The Tribunal accepts Mr Mansfield's evidence, which was given honestly and without exaggeration.  We note that Dr Evans commented at the end of the non-economic loss question in T12:

“This man appears to me to be very well motivated and not to exaggerate his problems.”

20.  We agree. 

21.  Mr Mansfield is always aware of low back pain, which varies from day-to-day.  For example, on a good day, he does not require medication but on a bad day the pain may reach 7 on a scale of 0 - 10, with 10 being the most severe pain one could imagine.  He suffers a problem with the pain about twice a week.

22.  He restricts his movements and activities to avoid causing pain.  He does not walk long distances, run, swim or bend backwards.  He has altered how he sits in a chair and a motor vehicle to minimise the pain.  He could be described as stoic, taking medication of either Panadeine Forte, when he is at home as it makes him drowsy, or Tramal when at work.  He takes medication once or twice a week.  On weekends he drinks about half a bottle of Scotch in a session, which also provides pain relief. 

23.  He feels he has tried everything that could help him while in the Navy and I note the comments earlier in relation to the treatment that he had, and nothing other than medication provides long lasting relief.  He sees no point in going to doctors in relation to his back.

24.  On the evidence of Drs Evans and Benanzio, it is quite clear that there is an element of subjectivity in determining the percentage of permanent impairment that one assesses.  Of concern to us in relation to Dr Evans' report was his failure to consider or give real consideration to the limit of extension to Mr Mansfield's back.  He did not test it on his first examination.  He refers to it in his second report, and it seems to be because somebody else had mentioned it in a report.

25.  His view is that extension is not of any significance, and here in particular he says it is only a small percentage of movement on extension.  However, we prefer the evidence of Dr Benanzio in relation to extension of the back on the evidence and  find that Mr Mansfield is unable to extend his back.

26.  I note that in terms of table 9.6, what we have to find is whether it is a minor restriction of movement, which is Dr Evans’ evidence, which gives a 5 per cent impairment, or according to Mr Jackson's submissions today, a loss of less than half normal range of movement, which is a 10 per cent loss of normal range of movement.

27.  We note on the authority of Comcare v Amorebieta 1996 66 FCR 83, that the relevant criterion is the limitation of movement caused by pain. We find that Mr Mansfield avoids activities that will lead to pain, and it may be that during his examination by Dr Benanzio he did not force himself to move to the extent where pain was suffered. However, in any event, given the evidence of Mr Mansfield, the reports of all the doctors that are before the Tribunal, it is our view that Mr Mansfield has a loss of less than half normal range of movement, which in accordance with table 9.6 means a permanent impairment of 10 per cent. We are not satisfied or persuaded by Dr Evans, or the other medical evidence that suggests Mr Mansfield has only minor restriction of movement.

Decision

28. Accordingly, Mr Mansfield is entitled to compensation pursuant to section 24 of the Act. The decision pursuant to section 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the reviewable decision is set aside, and substituted for it is the decision that Mr Mansfield has a 10 per cent whole person impairment pursuant to clause 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment and, accordingly, is entitled to compensation pursuant to section 24 of the Act. We remit the calculation pursuant to section 27 of the Act for recalculation.

29.  Costs follow the event and, accordingly, make the appropriate order that the respondent pay the applicant's costs.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed   Miss Sacha Keady
              Associate

Date/s of Hearing  14 March 2005, 15 March 2005
Date of Decision  15 March 2005
Counsel for the Applicant         Mr C Jackson
Solicitor for the Applicant          Fairbairn Lawyers
Counsel for the Respondent     Mr B Kelly
Solicitor for the Respondent     Australian Government Solicitor