McGuire v Comcare

[2002] AATA 268

DECISION AND REASONS FOR DECISION [2001] AATA 268

ADMINISTRATIVE APPEALS TRIBUNAL               Nº W2000/315

Nº W2001/222

GENERAL ADMINISTRATIVE  DIVISION

Re:            ALEXANDER KYLE McGUIRE

Applicant

And:         COMCARE

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
Date:             18 April 2002
Place:            Perth

Decision:The Tribunal affirms the decision under review.

(….sgd B.H. Pascoe….)
  Senior Member
  COMPENSATION — claim for permanent impairment – cervical spine – whether injury in 1951 resulted in permanent impairment – whether impairment result of congenital degenerative changes – whether impairment permanent prior to 1 December 1988
Safety, Rehabilitation and Compensation Act1988 ss.24, 124
Commonwealth Employees' Compensation Act 1930

REASONS FOR DECISION

18 April 2002  Mr B.H. Pascoe, Senior Member

1. This is an application to review a decision of the respondent dated 15 May 2001 which affirmed a determination of 31 March 2000 that the applicant was not entitled to a lump sum payment for permanent impairment to his neck and cervical spine.

2. At the hearing the applicant, Mr A. McGuire, was unrepresented.  The respondent was represented by Mr P. Quinlay, of counsel.  Evidence was given by Mr McGuire, Dr C. Walkley, a specialist in rehabilitation medicine, and Mr S. Brash, an orthopaedic surgeon.

3. Mr McGuire enlisted in the Australian Army in London on 31 July 1951 and was discharged in West Australia on 30 July 1957.  He said that, in September 1951, he was involved in swimming training.  Three soldiers had remained behind in the hut.  On return from swimming, Mr McGuire said that he realised someone had opened and searched his personal belongings.  He did not report this but suspected two of the three soldiers who had been in the hut.  Later, when returning to the hut from guard duty unexpectedly, he found the suspects pilfering from other soldiers' belongings.  Again, he did not report his findings but suggested to other soldiers that they check for any missing items.  Mr McGuire said that a money belt with some cash and badges of some sentimental value disappeared.  A small hammer of his was subsequently seen in the possession of one of his suspects and Mr McGuire said that, on asking for its return, he was attacked and thrown to the ground, hurting his shoulder.  He said he put up with the problem for some five to six weeks but, on 1 November 1951, when about to go swimming, he was attacked from behind with an arm about his neck, thrown into the air and landed on his head.  He said he had some paralysis in his arms and legs and could not stand without assistance.  He was taken to the Regimental Aid Post where he was placed on a stretcher with a heat lamp on his neck.  An ambulance then conveyed him to Moorbar Hospital where he stayed overnight under observation for a suspected fracture of the neck.  The next day he was taken to Concorde Repatriation General Hospital (Concorde).  Mr McGuire said that he was placed on a slanted bed with traction to his head and neck.  He thought that he remained in traction for 14 days.  He remained in Concorde until discharged on 4 January 1952.  The admission sheet at Concorde showed an entry on 2 November 1951:  "… Admitted for ? Fract. ? Congenital malformation of cervical spine".  An X-ray report on 6 November 1951 stated:

   I have carefully examined the films.  CV2 and 3 are fused to form a block vertebrae.  I cannot convince myself on the films available that there is any abnormality elsewhere.   …  

4. Mr McGuire said that, after discharge from hospital, he had a regular "clicking" sound in his neck and had stiffness in his neck which restricted his ability to turn his head quickly or to look up at the sky.  He said that he avoided activities such as watching a football match and tended to limit his activities to interests such as stamp collecting and photography.  He was transferred to Balcombe camp in Victoria and found difficulty in one of his duties as a physical training instructor.  While at Balcombe in 1952, he said that a sergeant somewhat playfully pulled him by the neck from his bed.  After three and a half years at Balcombe, Mr McGuire requested a transfer to West Australia.  He said that he saw a doctor a couple of times and was given ray lamp treatment without any improvement.

5. After discharge from the army, Mr McGuire worked in several jobs, much of which involved heavy manual work.  He maintained that his neck continued to be a problem for him and, although pain was not constant, he used painkillers regularly and, at times, would do something which would cause severe neck pain.  He said that the "clicking" remained persistently then and now.  He acknowledged that he had lower back problems also but attributed that to age.  He attributed ongoing shoulder problems to the attack on him in September 1951 but had never claimed compensation for shoulder injury.

6. In December 1991, Mr McGuire lodged a claim for compensation for "spine injury".  On 4 August 1993, the respondent admitted liability for

   … persistently stiff and painful neck consequent upon the presence of both advanced degenerative changes and two separate development anomalies in the form of "block (partially fused) vertibrae" affecting the C2/3 and C6/7 verbratal [sic] levels sustained by you on 2 November 1951.

This description of the condition was taken from a report prepared by Dr Walkley on 27 May 1993 after examination of Mr McGuire on 26 May 1993.  Dr Walkley stated that:

…

(e)The impaired mobility of his cervical spine resulting from the developmental fusion of the C203 and C6-7 vertebrae would have resulted in the acceleration of the normal rate of degenerative change in his cervical spine even had he not been subject to any specific cervical trauma.

…

The doctor considered that Mr McGuire's present condition was partially due to the incident on 1 November 1951 and exacerbation by the incident in 1952.  On 9 July 1999, Mr McGuire lodged a claim for permanent impairment described as "neck stiffness, vertebrae and right shoulder, painful-spasmodic click 2/4 area".   The denial of that claim is the subject of this application.

1. Dr Walkley saw Mr McGuire on 25 June, 7 July and 9 July 1999 and provided a further report dated 22 July 1999.  Apart from the congenital fusion of both C2/3 and C6/7, Dr Walkley found that Mr McGuire suffered from Dextrocardia (Situs Invertus), a rear developmental anomaly in which all the internal organs including the heart are transposed.  He found Mr McGuire had considerable restriction of active cervical rotary movement and that he was no longer able to compensate for the reduced neck mobility by rotating his thoracic spine as the latter had stiffened up during the intervening years because of the progressive development of Forestier's Disease (diffuse ideopathic skeletal hyerostosis), a particularly progressive form of degenerative osteoarthrosis.  He was suffering also from vertebro-basilar ischaemia as a result of his advanced cervical degenerative changes.  Dr Walkley assessed Mr McGuire's neck condition to be permanent and considered that the impairment was at least 10 per cent impairment under the Guide to the Assessment of the Degree of Permanent Impairment (the Guide).  In his oral evidence, Dr Walkley remained of the view that part of Mr McGuire's condition was attributable to the 1952 incident and stated that he was influenced by the two months in hospital.  He acknowledged that Mr McGuire had been adamant that his neck had never been right since that incident.

2. Mr Brash examined Mr McGuire in March 2001 and provided a report dated 20 March 2001 and a supplementary report dated 1 May 2001.  He further examined Mr McGuire on 12 February 2002 and provided a report dated 19 February 2002.  In all reports he was of the view that Mr McGuire's condition was due to the progressive and naturally occurring degenerative changes in the cervical spine as well as in both shoulders.  He was in no doubt that there were pre-existing congenital fusions at C2/3 and C6/7.  He believed that, if the changes were due to trauma, the changes would be more localised.  He did not believe that the impairment was due to the incidents in 1951 or 1952 described by Mr McGuire.  In his report of 19 February 2002, Mr Brash considered that a considerable amount of Mr McGuire's pain was due to a complete tear of the rotator cuff of the right shoulder which was due to severe, significant and progressive age-related degenerative changes.  In his oral evidence, Mr Brash said that, if trauma to the cervical spine had caused the subsequent problems, he would have expected to find a localised fracture or localised changes in one or two discs not the generalised changes found with Mr McGuire.

3. It was submitted for the respondent that the current neck impairment of Mr McGuire did not arise out of or was not contributed to by, his employment in the army. It was argued that the permanent impairment is the result of congenital factors and the aging process. It was submitted further that, to the extent that any permanent impairment was suffered as a result of employment, impairment was permanent prior to 1 December 1988 and is not compensable under s.124(3) of the Safety, Rehabilitation and Compensation Act1988 (the Act).  Mr Quinlay argued that, while it was possible that the injury suffered by Mr McGuire in 1951 had resulted in permanent impairment, that impairment had stabilised well before 1 December 1988 and any impairment since then is the result of congenital degenerative changes which are unrelated to the original injury.

4. There are inevitable problems in dealing with a claim for compensation over 50 years from the date of an injury alleged to be the cause of a current impairment.  Memories are not always reliable, much documentary evidence is unavailable and witnesses are unavailable or forced to rely on the history given by the applicant.  However, in this case, the respondent does not dispute that Mr McGuire suffered an injury to his neck in compensable circumstances on 1 November 1951.  The difficulty is whether that injury has resulted in a permanent impairment and, if so, whether the resulting impairment became permanent prior to 31 December 1988.

5. As the injury to Mr McGuire occurred in 1951, the entitlement to compensation is initially governed by the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act").  This 1930 Act was replaced subsequently by the Compensation (Commonwealth Employees) Act 1971 ("the 1971 Act") which, in turn, was replaced by the Act which commenced on 1 December 1988. Section 24 of that Act provides for lump sum compensation where an injury results in permanent impairment. However s.124(3) provides that a person is not entitled to compensation under s.24 if the person was not entitled to receive compensation of a lump sum in respect of that impairment under either the 1930 Act or the 1971 Act as in force when the impairment occurred. Neither the 1930 Act nor the 1971 Act provided for lump sum compensation for permanent impairment of the neck or cervical spine. Consequently, if it can be said that the injury in 1951 resulted in permanent impairment and that impairment became permanent prior to 1 December 1988, no entitlement to a lump sum arises. If the impairment became permanent after that date or a new impairment resulting from that injury became permanent after that date, s.24 of the Act can provide for a lump sum subject to the degree of permanent impairment being 10 per cent or more.

6. Table 9.6 of the Guide refers to impairment of cervical spine.  Dr Walkley assessed Mr McGuire as having a "loss of half normal range of movement" which produces a 10 per cent whole person impairment.  Mr Brash's assessment was a "loss of more than half normal range of movement" producing a rating of 15 per cent.  Mr P. Watson, a neurologist, examined Mr McGuire in July 2001 and found a 50 per cent reduction in cervical spine movement.  He noted in his report dated 26 July 2001 that the impairment did not relate solely to the injury in 1951 but related also to the ongoing degeneration occurring between the congenital fusions.  All medical opinions note that Mr McGuire has suffered from neck pain, clicking sensations and discomfort at the craniocervical junction since the 1951 incident.  While Mr Brash maintains that the 1951 injury no longer plays any part in Mr McGuire's current cervical problems, both Dr Walkley and Mr Watson attribute some part of his current condition to that injury.

7. Based on the evidence, it is accepted that Mr McGuire suffered an injury to his cervical spine in November 1951 which may have been aggravated in 1952 and which occurred in compensable circumstances.  This has been accepted by the respondent.  However, the question here is whether or not that injury resulted in permanent impairment of 10 per cent or more and that impairment became permanent after 1 December 1988.  On the evidence of Mr McGuire and the medical evidence, I am satisfied that the impairment caused by the 1951 injury was less than 10 per cent under the Guide and became permanent well prior to December 1988.  The further impairment has been the result of degeneration of the cervical spine resulting from congenital fusions exacerbated by degenerative osteoarthrosis of the thoracic spine and rotator cuff tear.  It is relevant to note that Mr Brash assessed a higher percentage of impairment some two and a half years after Dr Walkley and some six months after Mr Watson indicating that the impairment is increasing with time.

8. As a consequence of these findings, Mr McGuire is not entitled to lump sum compensation for permanent impairment of the cervical spine and the decision under review should be affirmed.

   I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mr B.H. Pascoe, Senior Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of Hearing:  15 March 2002
   Date of Decision:  18 April 2002
   Solicitor for the Applicant:           Nil —Self-represented
   Counsel for the Respondent:       Mr P. Quinlay

   Solicitor for the Respondent:       Australian Government Solicitor