McHENRY and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2010] AATA 833
•27 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 833
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3888
VETERANS' APPEALS DIVISION ) Re DAVID MCHENRY Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr M Denovan, Member Date27 October 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]............................
Member
CATCHWORDS
WORKERS’ COMPENSATION – Claim for acceptance of liability by the Military Rehabilitation and Compensation Commission of ‘muscle spasm injury to lower back’ – Claimed condition determined not to exist – Decision under review affirmed.
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19, 24, 27
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
27 October 2010 Dr M Denovan, Member INTRODUCTION
1. David McHenry (the applicant) served in the Australian Regular Army from 23 June 1981 to 22 June 1984. Mr McHenry suffers from lower back pain (“LBP”). On 27 November 1987, the Military Rehabilitation and Compensation Commission (the respondent) accepted liability for “muscle spasm injury to lower back”, sustained whilst the applicant was taking part in an obstacle course run on 22 November 1983.
2. Mr McHenry made a claim for permanent impairment compensation, which was denied on the basis that the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”) did not provide for the payment of lump sums for back injuries[1]. He also made a claim for incapacity payments on 10 July 2001. He was granted incapacity payments intermittently.
[1] Determination dated 29 May 2001.
3. On 23 December 2005, Mr McHenry made a claim for a psychological condition which he said was secondary to his back condition.
4. On 11 January 2007, the respondent determined that as of that date the effects of the “original soft tissue back injury no longer exist” and that there was no present liability to pay compensation for medical treatment, incapacity or permanent impairment. That decision was affirmed on 24 June 2008.
5. By determination dated 12 January 2007, the respondent denied liability for a psychological condition. That decision was affirmed on 24 June 2008. The applicant has recently lodged an application to the respondent for review of the decision regarding his psychological disorder; however as far as I am aware, that review is still in progress. That matter is not before me.
6. On 26 August 2008 Mr McHenry applied to this Tribunal for review of the decision dated 24 June 2008.
7. Mr McHenry claims that he has suffered continuous lower back pain since the injury that he sustained during his army service in November 1983. The respondent contends that the injury suffered in 1983 was one that caused short term back pain only, and that the applicant has not suffered continuing back pain since that time.
THE LEGISLATION
8. Sections 16 and 19 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (“the Act”), creates a liability to pay an employee treatment expenses and incapacity payments respectively for an injury for which liability has been accepted.
9. Sections 24 and 27 of the Act create liability for payment for permanent impairment. It is not in dispute that these sections have no application in this matter as this matter falls under the purview of the 1971 Act[2] which has no provisions for payment of permanent impairment in respect of the accepted back condition.
[2] Section 39 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth).
ISSUE
10. In order for me to determine whether liability presently exists to pay medical expenses, incapacity, or permanent impairment, I must decide whether the applicant continues to suffer work related lower back pain.
On 11 January 2007, did Mr McHenry continue to suffer from the effects of the initial back injury sustained in 1983?
Background
11. Mr McHenry told me that on 22 November 1983 he injured his back whilst negotiating an obstacle course at Holsworthy Army Barracks. Whilst negotiating a cargo net, another soldier, also negotiating the cargo net above him, fell. The butt of his rifle went into the ground and the point of his rifle went into Mr McHenry’s lower back.
12. Mr McHenry told me that immediately after the injury he experienced intense pain; was taken to the military hospital; and, that he urinated blood for six or seven days. It was believed at the time that he had ruptured his kidney. X-rays and blood tests were performed. Mr McHenry recalls passing blood in his urine for a six week period following the injury.
13. Mr McHenry claims that he returned to work after being discharged from hospital. Unable to return to parachute duties, he was placed on light duties in hygiene, which effectively meant that he cleaned toilets for the remainder of his service. He was not referred to any specialist doctors and had no follow up other than at the medical centre in his unit (“RAP AT 3RAR”).
14. Mr McHenry said prior to the injury he was assigned to a parachuting regiment. After his injury his career as a parachuter was effectively over. He claims that although he left at the end of his three year enlistment, he would have preferred to have continued in the Army, and would have done so but for the injury that he sustained in November 1983. He claims to have been below medical standard at the time of his discharge. He told me that he was medically discharged.
15. Mr McHenry told me that the pain in his back has never gone away. It is intense pain, and can come on at anytime, for example when bending over incorrectly. The pain is located in his back, and comes around to the front of his abdomen. It happens a couple of times a month and the pain can last one to one and a half days. Mr McHenry takes pain killers for his back pain, which includes across the counter medication, and panadeine forte, which he avoids if he can because it makes him shake. He also uses alcohol to medicate his pain. He learnt to cope with his pain whilst attending the Mater Hospital Rehabilitation program. He has been referred to back specialists over the years but has refused to go because he does not like doctors touching him.
16. Mr McHenry worked as a security guard in 1984 and 1985, then as a sales representative from 1985 to 1986. He attempted to re-enlist in 1986. He told this Tribunal that he failed the intake medical, because of the November 1983 injury. He said he was told by the doctor at the intake medical that he would be in a wheel chair by the age of 50 or 60 years and that that is why he was prohibited from re‑enlisting.
17. Mr McHenry worked as a site foreman for a building company from 1986 to 1988. From 1988 to 1993, he worked as a tour guide in the Northern Territory. From 1994 to 1999, he worked as a powder coater. In 1999, he worked as a sports facility manager and, from 1999 to 2000, as a concretor.
18. When Mr McHenry initially made claims to the respondent and the Repatriation Commission in relation to this back injury, he stated that the causative incident occurred in 1982. He now claims to be “quite clear” that the injury occurred in 1983.
19. Mr McHenry received regular incapacity payments since 2001 in relation to his back. In 2004, compensation medical advisor, Dr Suzanne Thomson was asked to give an opinion as to ongoing liability for the condition of muscle spasm injury to the lower back. Dr Thomson identified a number of discrepancies in Mr McHenry’s reporting of his symptoms and noted that there was a lack of contemporaneous medical evidence in relation to the injury. She recommended orthopaedic review. Prior to orthopaedic opinion being sought, Mr McHenry claimed sequelae depressive condition. At the request of the respondent, he was reviewed by psychiatrist Dr Wallace. Dr Wallace noted several discrepancies in Mr McHenry’s account of his back problems. As a result of Dr Wallace’s report, the respondent requested review of Mr McHenry by orthopaedic surgeon, Associate Professor David Morgan.
20. In his report dated 14 July 2006, Associate Professor Morgan noted that the current symptomatology of Mr McHenry included episodes of back pain approximately twice a month, which would last anywhere from a few minutes to a day or so. Associate Professor Morgan opined that at the time of injury, Mr McHenry would have sustained some local bruising in the region of the para-lumbar musculature. He said that “the natural history for this condition is for gradual healing to occur. Some months or possibly a year could elapse before the lesion may heal.” Associate Professor Morgan observed that Mr McHenry’s x-rays “demonstrate some mild age-related degenerative changes in the upper lumbar region”, which he opined are responsible for his current intermittent symptoms. According to Associate Professor Morgan, “these changes are of a constitutional origin and are not related to any one single specific event such as the one described by Mr McHenry as having occurred in November 1982” (1983). Associate Professor Morgan said that he would “have difficulty identifying a causal link between the current clinical circumstance and the accident [as] described”.
21. Solicitors for Mr McHenry requested that he be reviewed by neurologist Dr D Todman. Dr Todman’s report dated 29 May 2007 lists the documents that he had available to him. It appears that he did not have access to either Dr Thomson’s or Dr Wallace’s reports, in which the discrepancies in history were noted. Nor did Dr Todman have access to Mr McHenry’s general practitioner’s notes. Dr Todman did not give evidence at the hearing. Dr Todman recorded a history of pain persistent since the accident, with severe pains three times a fortnight lasting a day or two, and moderate pains intermittently in the same distribution. Dr Todman was told by Mr McHenry that he was below medical standard after the injury and was discharged on medical grounds. He listed Mr McHenry’s work in the pest industry and in administration. It is unclear whether he was aware of the more labour intensive aspects of Mr McHenry’s work history. When describing activities of daily living, Dr Todman noted Mr McHenry was limited in the physical tasks that he can do. Dr Todman organised an MRI scan and provided a second report dated 7 June 2007. Dr Todman indicated that the MRI report excluded any major structural abnormality. He concluded that there have been continuing symptoms since the injury, and that there “has been a chronic musculo‑ligamentous strain to the lumbar spine caused by the accident on 23 November 1983”.
22. At the request of the respondent, Dr Simon Journeaux, trauma and orthopaedic surgeon, examined the applicant, as well as the entirety of the medical evidence available. He has provided a report dated 26 May 2009. Dr Journeaux examined intra alia, the reports of Drs Thomson, Wallace and Todman, and the general practitioners notes. Mr McHenry told Dr Journeaux that he has experienced ongoing intermittent pain in his back almost daily. Once he had the pain, it could trouble him for a few days on end. The pain usually lasts for up to two hours. Dr Journeaux concurred with Associate Professor Morgan that a full recovery would have been expected after the 1983 injury. Dr Journeaux considered that the age related degenerative changes noted in imaging studies may or may not be contributing to the applicant’s current physical symptomatology. Dr Journeaux noted that the applicant had clearly had prolonged pain free periods, which he opined would go against the conclusion that the cause of his problems was a purely chronic ligament injury and would point to a non-mechanical back pain. Dr Journeaux regarded it as being likely that there is a significant somatic presentation of physical symptoms as a result of his long standing adjustment disorder. Dr Journeaux opined that the cause of his lumbar spine symptoms is more likely psychiatric rather than truly due to any physical injury that can reasonably be attributed to the injury in 1983.
23. Under cross examination, Dr Journeaux was asked to comment on the opinion of Dr Todman. Dr Journeaux noted that Dr Todman is a neurologist, with expertise in the brain, the nerves and the spinal cord. Dr Journeaux said that the diagnosis made by Dr Todman of chronic musculo-ligamentous strain was of an area of the body where orthopaedic expertise was more appropriate, as orthopaedic specialists deal with the bones, muscles and other supportive structures. It was the history of long pain free periods that indicated to Dr Journeaux that the diagnosis provided by Dr Todman was incorrect.
Consideration
24. In deciding the cause of Mr McHenry’s current back symptomatology, I prefer the opinion of Dr Journeaux. His report is detailed and comprehensive, and by comparison, Dr Todman’s is very short. Dr Journeaux has examined the evidence in its entirety and is aware of the discrepancies in the history given by the applicant.
25. From the documents Dr Todman states he has relied upon, I assume that he was unaware of the discrepancies in Mr McHenry’s history when he prepared his report. This is important because as pointed out by Dr Wallace[3], Mr McHenry alters his account of his problems to various doctors to fit his objective. He is a witness of poor credibility and his account of events in relation to his medical injury, symptoms and history cannot be relied upon.
[3] Exhibit 1, T126/344.
26. By way of example, on 15 April 1986, Mr McHenry told Dr Kelly that his back pain did not cause him problems and that he was able to play sport. Mr McHenry saw Dr Kelly in the weeks preceding his attempts to re-enlist in the Army. Just three months later, Mr McHenry told Dr Mahony that he suffered from persisting symptoms of back pain and was unable to play sport. Dr Wallace opined that the change in history given reflected the change in the needs of Mr McHenry, who was preparing a compensation claim at the time when the report of Dr Mahoney was written.
27. Further inconsistencies occur in relation to another compensation claim. Whilst pest treating a house on 20 January 2005 as part of his employment, Mr McHenry fell backwards and hurt his back. Orthopaedic surgeon, Dr J Fraser, opined that Mr McHenry fractured his coccyx. As a result, he was incapacitated from work for some months. He was reviewed by Dr J Morris, Orthopaedic Surgeon, on 14 June 2005. Significantly, Mr McHenry did not mention his history of lower back pain to either Dr Fraser or Dr Morris. More alarming is that Mr McHenry told Dr Morris that he had no problems with his back prior to the 2005 accident. Yet in 2001, Mr McHenry told the rehabilitation consultant that he suffered from unpredictable, intermittent severe pain, which precluded him from playing sport, and that he had been informed that any further injury could result in him being confined to a wheel chair, and in December 2002 Dr Fraser, treating general practitioner, noted that Mr McHenry suffered from recurrent back pain with sudden onset that precluded him from physical activity.
28. Mr McHenry’s claim that he was on restrictions permanently and medically discharged, or discharged below the required medical standard and unable to return to his parachute regiment are contradicted by the available evidence.[4] The discharge medical indicates that Mr McHenry was FE (fit everywhere).[5] The same document recorded that he was fit, and that his was a non-medical discharge[6]. SCMA advised that Mr McHenry completed only a Basic Parachute course in 1983, and that he did not have regular paratrooper activities as he claims.
[4] See his account given to rehabilitation consultant in 2001.
[5] The highest fitness ranking.
[6] Exhibit 1, T8/16 - T9/17.
29. Dr Todman’s diagnosis cannot be relied upon because it is unlikely that he was aware of the discrepancies in Mr McHenry’s reporting. I am not persuaded that Dr Todman would have come to the same conclusions if he was aware of the full and accurate history.
30. Further, I accept the evidence of Dr Journeaux that the most appropriate specialist opinion is that provided by an orthopaedic specialist in this case. Dr Journeaux’s opinion is largely consistent with that of Associate Professor Morgan’s, also an orthopaedic surgeon. Dr Journeaux appears to have additional qualifications in the area of trauma. Both Dr Journeaux and Associate Professor Morgan agree that the effect of the initial injury in 1983 would not be the cause of his ongoing symptoms.
31. To resolve this matter it is not necessary that I decide what exactly the cause of Mr McHenry’s current symptomatology is, and in that regard the difference in the opinions of Associate Professor Morgan and Dr Journeaux is of limited importance. Whether Mr McHenry has back pain from age related degeneration or due to an adjustment disorder does not matter because neither of these causes is related to his service in the Army. In passing, I do note however that the opinion of Associate Professor Morgan is very similar to that of consultant physician Dr Kelly provided in 1986[7].
[7] Mr McHenry, at the request of the Repatriation Commission, was reviewed by consultant physician Dr B Kelly. His report is dated 15 April 1986. Dr Kelly was told by Mr McHenry that he suffered LBP bilaterally, on average once a month. Dr Kelly concluded that there was “no residual renal damage and that his slight back ache is presumably related to mild disc degeneration”.
32. The respondent submitted that I need not accept that the factual basis of the determination that accepted liability is correct. It is permissible for the Tribunal to make a finding that effectively undercuts the necessary findings of fact made in the initial determination of the respondent to accept liability in respect of the applicant’s claim[8]. Based on an examination of the evidence before me, I conclude that notwithstanding the witness report to the injury[9], the contemporaneous evidence supports a finding that no injury occurred as described by Mr McHenry on 22 November 1983.
[8] Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
[9] Exhibit 1, T151/464-471.
33. The possibility that liability was accepted in error was raised in the decision under review. In the decision, it was noted that Soldier Career Management Agency (“SCMA”) confirmed that no record of any incident is present in Mr McHenry’s file, and that the course report during which the injury was allegedly sustained includes no comment about any incident occurring.
34. Most significant to me however are the contemporaneous medical records. Not all of Mr McHenry’s medical records are available, however a careful reading of those that are, contradict the claims made by Mr McHenry. I will now explain.
35. The medical records indicate that on 23 November 1983, the applicant presented to RAP 3RAR with lower back pain. For a start, this simply could not be possible if he was admitted to hospital the day before on 22 November 1983 as he claims, as these notes are made at the RAP at 3RAR, not at the hospital. The RAP medical notes make no mention of a history of injury, and no report of blood in the urine at that time. I understand that doctor’s notes are not always comprehensive, however I consider that an injury of the severity that Mr McHenry claims to have sustained would have been noted. I find it highly unlikely that Mr McHenry was passing blood in his urine and he either did not mention this, or it was not noted in his medical records. Further, the treatment that Mr McHenry was prescribed is inconsistent with his story. Mr McHenry was given restricted duty for five days, and swimming was recommended. He was treated with heat rub, ray lamp and medication for five days[10]. No investigation or treatment for blood in urine, or suspected kidney trauma was described at that time.
[10] T4/12.
36. Five days later, on 28 November 1983, Mr McHenry presented to the RAP with continuing back pain[11]. Again, this could not have occurred if Mr McHenry was hospitalised for a week as he claimed, as his medical records would have been made at the hospital, not the RAP. On that occasion, it was noted that the pain was worse when he went to the toilet. The medical notes indicate that the possibility of a urinary tract infection was considered and a urine test was ordered. Again, there was no suggestion that there was any possible kidney trauma either in the history recorded or the investigations ordered. The treatment prescribed is also inconsistent with a conclusion that kidney trauma was considered a possibility. Mr McHenry was simply given a further two days of light duties.
[11] Whilst the medical record of this attendance is undated (T6/14), the accompanying urine pathology request slip, completed the same day is dated 28 November 1983 (T7/15).
37. The urine pathology request prepared at the time reads to the effect that “member says he has had loin pain for days”. It was noted that pain worsens with micturition (urinating), there was no dysuria (pain when urinating), and possibility of urinary tract infection is raised. No history of possible renal trauma is recorded on the request form. The results of that test on 30 November 1983 were NAD (no abnormality detected)[12]. This is inconsistent with Mr McHenry’s claim that he was passing blood in his urine, because if he was, the red cell count would not have been nil.
[12] T7/15.
38. A lumbosacral spine x-ray was performed around the same time and it indicated very mild lumbar scoliosis, either positional or due to muscle spasm[13]. When trauma necessitates an x-ray it is usual medical protocol to include a brief description of that trauma in the x-ray request form. Here the x-ray request makes no mention of trauma, it reads “member says he has lower back pain and spasm”.
[13] T5/13.
39. Mr McHenry’s discharge medical indicates that he complained of back pain for the eight months after he sustained a blow to his back from a fellow member’s rifle butt during an obstacle course exercise, and that he gets pain in the left renal angle when drinking fluids. Comment is made that he was seen by a medical officer, and that x-ray and microunrine were both NAD. Significantly, there is no mention of Mr McHenry having been hospitalised at Ingleburn Military Hospital, or of him having blood in his urine, or that surgery was considered[14]. In fact Mr McHenry reported that he had no history of kidney disease in the medical history questionnaire he completed on 6 June 1984. Had he been hospitalised, passing blood for weeks, and/or the possibility of surgery was being raised, as he now claims, I consider that there would have been some reference to it in the discharge medical.
[14] See his account given to rehabilitation consultant in 2001.
40. It seems likely to me that Mr McHenry first associated the back pain he reported on 23 November 1983 with a combat injury when he presented to his discharge medical. There is simply no suggestion of it prior to this in the contemporaneous records. The medical officer, when completing the discharge medical, asked questions of Mr McHenry to ascertain in his own mind whether there were any kidney problems in relation to the injury that Mr McHenry was describing. Perhaps the doctor’s questioning of Mr McHenry at this time may have planted the idea of the possibility of a kidney injury in Mr McHenry’s mind. The first mention that he made in any document about kidney injury was a few weeks later on 16 July 1984 when Mr McHenry lodged a claim for pension in respect of a ruptured left kidney.
41. I find that Mr McHenry did not sustain an injury on 22 November 1983 whilst participating in a combat course which resulted in him being hospitalised and was thought at the time to have possibly involved his kidney.
42. On the basis of the lack of evidence to substantiate the occurrence of an injury to Mr McHenry’s back on 22 November 1983, the significant volume of medical evidence which is inconsistent with his account[15], and the unreliability of the evidence given by Mr McHenry, I find that he did not sustain an injury on 22 November 1983. There is no liability to pay compensation to Mr McHenry pursuant to ss 16, 19, 24 and 27 of the Act in respect to lower back muscle sprain.
[15] In summary, the medical evidence indicates that Mr McHenry was not hospitalised, did not pass blood in his urine, and had restrictions for a total of 7 days only, that he was not below medical standard or medically discharged. As noted by the discharge medical officer, no renal investigations were performed at any time during the service after the injury; the contemporaneous medical notes indicate an infection was considered the likely possible cause of Mr McHenry's problems. There is no suggestion renal trauma was considered a possible cause.
43. Even if Mr McHenry had sustained an injury on 22 November 1983 as he claims, I would still make the same decision, on the basis of the evidence of Dr Journeaux and Associate Professor Morgan as their evidence is that the effects of the original soft tissue back injury no longer exist. That both Dr Journeaux and Associate Professor Morgan consider that the injury would have been one that early recovery was likely, I find that if Mr McHenry did suffer a muscle spasm injury to the lower back in 1983, it had resolved by the time Mr McHenry was reviewed by Dr Kelly on 15 April 1986.
DECISION
44. I affirm the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: ......................[Sgd].......................................................
Kate Slack, Research AssociateDate/s of Hearing 31 August 2010
Date of Decision 27 October 2010
Applicant was self-represented
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Ms Suzy Dole, Sparke Helmore
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