Morris and Military Rehabilitation and Compensation Commission
[2008] AATA 924
•17 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 924
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/1824
VETERANS’ APPEALS DIVISION )
RePHILLIP BRUCE MORRIS
Applicant
AndMILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
TribunalMD Allen, Senior Member
Dr MEC Thorpe, Member
Date17 October 2008
PlaceSydney
DecisionThe decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely:
(a)that the Respondent is liable to pay compensation to Phillip Bruce Morris pursuant to the Safety, Rehabilitation and Compensation Act 1988 for the injury described as “degenerative changes of the lumbar spine”; and
(b)unless within 14 days from the date of this decision the Respondent notifies the Tribunal of its objections, the Respondent is to pay the Applicant’s costs.
................ [sgd]............................
MD Allen
Senior Member
CATCHWORDS
WORKERS COMPENSATION – Applicant injured his back whilst undergoing national service – liability accepted until July 2006 – was ongoing incapacity materially contributed to by national service injury or was sole cause of current incapacity post-service employment – state workers’ compensation claim – that claim not for the same injury as the injury experienced on national service – decision set aside.
…
RELEVANT ACT/S:
Safety, Rehabilitation and Compensation Act 1988: s 118
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REASONS FOR DECISION
17 October 2008
MD Allen, Senior Member
Dr MEC Thorpe, Member
1. By application made 11 May 2007, the Applicant sought review of a “reviewable decision” made 13 March 2007 affirming a prior determination that ceased liability for payments pursuant to the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for incapacity from the injury described as “degenerative changes of the lumbar spine” with effect from 13 July 2006.
2. The Applicant first claimed compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971 on 25 August 1972. By a determination dated 16 March 1976, the Department of Defence accepted liability for the injury described as “aggravation of lumbosacral intervertebran [sic] disc lesion”. The Applicant received payments of compensation from the Department of Defence and later the present Respondent for periods from 1976 to 1979 and from 1992 to 1994. From 16 July 1994, the Applicant was in receipt of compensation benefits up to 13 July 2006.
3. Although the reviewable decision affirmed the previous determination to cease liability, the basis for the decision was that the Applicant had received compensation under a state workers’ compensation scheme for the same injury and that as a result, pursuant to s 118 of the Act, the Applicant was not entitled to compensation under that Act. In these proceedings, the Respondent did not seek to argue the applicability of s 118 of the Act, but based its case upon the opinion of Orthopaedic Surgeon Dr Hope, supported by other medical reports and records, that the effects of any back strain the Applicant had suffered in 1972 had ceased.
4. At the outset, it must be stated that the Applicant was a poor historian. Admittedly, he could not be expected to remember in detail events of over 30 years ago, however even in medical reports closer to the time of injury, there are conflicting histories.
5. In evidence to the Tribunal, the Applicant said that having been born in 1951 he left school to undertake an electrical apprenticeship at the Awaba coalmine near Newcastle in New South Wales. On 17 February 1972, he underwent a medical examination for the purposes of the National Service Act 1951 (as amended).
6. At that medical examination, the Applicant was classed as fully fit. On 19 April 1972, he commenced his basic training at Singleton army base in the Hunter Valley.
7. Sometime during May 1972 whilst undergoing basic training, the Applicant began to experience pain in his lower back. In evidence to the Tribunal, he referred to an incident where recruits were pushing each other off a rope bridge into knee-deep water, but this is first time any such incident has been referred to by the Applicant.
8. Following basic training, the Applicant was allocated to the Royal Australian Corps of Signals and transferred to Watsonia in Melbourne to undergo corps training. During the drive to Melbourne to take up duty at Watsonia, his back pain became worse and he reported sick.
9. In a Report of Injury completed by the Applicant dated 25 August 1972, the Applicant stated that the injury occurred “during the 4th week of basic training whilst doing PT back started to ache”.
10. Upon reporting sick with backache, the Applicant was referred to Repatriation General Hospital at Heidelberg and was prescribed a brace. He was also prescribed physiotherapy but according to the Applicant, this made him worse. He described the pain as severe and radiating down his right leg. Sitting and any sudden movement made the pain worse.
11. The Applicant’s medical history whilst conscripted into the army, is detailed in a medical summary dated 19 December 1972, which reads:
…
(a)L and N.S. Medical examination on 17 FEB 72 reveals no back injury prior to entry.
(b)The following extracts are from the out-patient notes (F Med 5) at Southern Command Personnel Depot.
11 JUL 72. Prior to entry three years ago pinched a nerve in back. Six months treatment by local medical officer with ray lamp and tablets. No XRay.
12 JUL 72. XRay showed narrowing L5. S1.
17 JUL 72. For sacro-iliac brace.
From this time on through JUL 72 to 25 AUG 72 he was seen in the out-patients department S.C.P.D. with the condition worsening.
(c)The ex-member was an inpatient SCPD medical centre 20 JUL 72 – 24 JUL 72 with (1) URTI (2) I.V. Disc lesion.
(d)He was seen by the orthopaedic surgeon on 11 AUG 72 who recommended his discharge from the Army.
(e)Final Medical Board
Confirmed by DGMS 23 AUG 72 found him unfit for further service – chronic low back stain I.V.D. lesion L5-S1 PMU. % disability 35%
(f)The consultant orthopaedic surgeon – Mr Hodge.
12. The report of the medical board that recommended the Applicant’s discharge from National Service noted that his disability, namely “chronic back strain and intervertebral disc lesion L5-S1” was attributable to service and aggravated by the conditions of service.
13. Following discharge from the army, the Applicant returned to Newcastle and had two weeks’ holiday. He then returned to his pre-enlistment employment as an electrician at the Awaba coalmine.
14. There is some dispute as to how arduous the Applicant's employment duties were. The Applicant’s evidence was that his normal duties placed no strain on his back, but he also stated that he had, as part of his duties, to lift cables and that some of the work was heavy.
15. Shortly after his return to work at the coalmine, the Applicant injured his back lifting a cable. A Report of Injury gives the date of this occurrence as 25 October 1972. Following this injury the Applicant was transported to Wallsend Hospital and was seen by Orthopaedic Surgeon, Dr Best.
16. A report dated 30 October 1972 by Dr Best to Coal Mines Insurance Co, reads inter alia:
…
Whilst lifting at work on the 25.10.72 he experienced severe low back pain.
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I suggest that he has an acute disc prolapse…
Dr Best certified the Applicant fit to return to work on 8 December 1972.
17. During the year 1973, the Applicant transferred to Munmorah mine as an electrician. Here the Applicant’s work was different as he was concerned only with maintenance as part of a team and only worked if there was a breakdown in equipment. He stated that this work was easier then previously, even so he had days off work when he could not manage the pain from his back. He also suffered other work-related injuries: for example to his neck, upper back and face.
18. On 8 August 1983, the Applicant transferred to Powercoal Myuna as an electrician and in 1986 was promoted to the position of a Mine Deputy. In this position, the Applicant was responsible for mine safety. Although this position was at an executive level, it did involve physical activity especially walking.
19. During the period 1972 to 1994, the Applicant's back pain was slowly getting worse, and harder to manage. He took periods of long service leave in order to rest. Finally in 1994, after an incident in which he found he was unable to rise from a vehicle that had transported him out of the mine, the Applicant retired from the work force.
20. Apparently the Applicant still experiences debilitating back pain. Although he takes analgesics for the pain (celebrex), he tries not to take too many. His activities have been curtailed, for example, he can no longer play lawn bowls. Orthopaedic Surgeon Dr Isaacs suggested surgery but the Applicant’s general practitioner dissuaded him from this course of treatment.
21. The Respondent submitted that there is doubt as to the status of the Applicant's back prior to his being conscripted into the army. To the Tribunal, he gave a history of back pain while an apprentice. Dr Blake, Orthopaedic Surgeon, on 23 November 1972, took a history of:
…
Over three years ago, as an apprentice at the pit top, he was lifting a heavy junction box above his head and he noted sudden lower back pain on the right. Following this he was off work for two days. The pain settled gradually, and his back returned to normal.
…
which is quite different to the history obtained by army medical officers of “three years ago pinched a nerve in back. Six months treatment by local medical officer with ray lamp and tablets”.
22. On 26 September 1973, Coal Mines Insurance Pty Limited wrote to the Command Secretary, Southern Command, regarding the Applicant’s compensation claim against the Department of Defence, stating:
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During the course of our enquiries, it was ascertained that Mr Morris made reference to a minor back incident in December, 1967. However, as a result of this incident no claim for compensation was made and Mr Morris took two days sick leave. It is understood that he did not consult any doctor at the time. …
In regard to your specific enquiry, we can only advise that no claim was submitted to this Company by Mr Morris prior to that of the 25th October, 1972, and in reference to the alleged prior incident in 1967, it was evidently of such a minor nature that it did not necessitate medical treatment.
…
23. On 16 April 1975, the Applicant wrote to the Regional Secretary Southern Command:
The back injury I received at Awaba State Coal Mine occurred whilst lifting a heavy object.
I continued work that day but was forced that night to visit the doctor owing to an increase in back pains.
I did not claim compensation but returned to work two (2) days later, where I continued work as normal.
24. Cross-examined in these proceedings, the Applicant said that his father did have a ray lamp so he probably used it but did not recall telling anyone that he used it for six months or took tablets for his pre-enlistment injury. Given the report by Coal Mines Insurance and the Applicant’s letter of 16 April 1975, we can only conclude that the incident prior to being conscripted was minor with no lasting effects.
25. We note that the Applicant made no mention of this pre-enlistment incident when being medically examined for fitness to be conscripted. Again, to our minds, this indicates a minor injury of such little consequence that it was not within the Applicant’s contemplation when being medically examined.
26. What is to be noted is that at his pre-enlistment medical examination, the Applicant was found to be fully fit to undergo army training without restrictions. Some nine months later he was discharged from the Australian Regular Army (National Service Supplement) unfit for service because of back stain and an intervertebral disc lesion L5-S1.
27. Following his discharge from the army, the first specialist medical practitioner to examine the Applicant was Dr Best who saw him of 27 October 1972 and diagnosed an acute disc prolapse. At that time, Dr Best did not take any history of prior back pain.
28. Dr Best did see the Applicant on other occasions but it was not until 10 September 1996 (report of 24 September 1996) that Dr Best was asked to address the Applicant’s complete medical history. That history states:
…
Whilst in the Army he developed low back pain and was medically discharged due to the back pain. He does not remember an injury to his back at that time. The pain was present in the low lumbar area and radiated into the left leg intermittently. He used a back brace and was treated by a Physiotherapist at Heidelberg Hospital.
Following his discharge from hospital he return to Awaba State Mine and worked there for about 2 weeks. He developed severe back pain when he lifted a cable at that time and on this occasion the pain radiated into the right leg. He was not able to walk at that time.
He was off for about 3 months at that time and was treated by me at Wallsend Hospital. He was treated conservatively. He feels that his attack of pain was much worse than the pain he experienced in the Army.
…
Examined in these proceedings, Dr Best acknowledged that his reference to “pain radiating into the left leg” could have been an error. Dr Best went on to opine in his report of 24 September 1996:
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He does have a permanent impairment of function of his back and neck. Both these impairments are primarily related to his work in the coalmines. …
29. In a report dated 7 November 2007, Dr Best took issue with Dr Hope's opinion regarding the Applicant and stated:
… I disagree that this was a minor back strain as evidenced by the fact that Mr Morris received treatment in the form of physiotherapy at Heidelberg Hospital. He was attended by a medical officer whilst in Melbourne and given a lumbar corset and subsequently discharged from the Army on medical grounds. Therefore, I disagree that this was a minor strain in view of that particular history. I agree with Dr Hope when he states that prior to enlisting in the Army his back was symptom-free. Dr Hope states that Mr Morris was able to carry out heavy work in the mining industry subsequent to his discharge from the Army and, therefore, this was evidence that there was no previous back injury. However, this particular activity was associated with severe and recurring attacks of back pain which occurred in September 1972, 1975, 1980 and 1992. This, surely, is not the history of a back which has fully recovered. I would say that contrary to the suggestion of Dr Hope, that this is the history of a continuing back impairment which is associated with recurrent attacks of back pain in a person who stoically persists at his work. The recurrent attacks of back pain signify that there was indeed a permanent back injury. It is difficult to know how Dr Hope could diagnose a “lumbar strain” retrospectively without associated investigations at that time in 1972 ….
30. Orthopaedic Surgeon Dr Hope first saw the Applicant on 2 March 2006 at the request of the Respondent. Dr Hope’s opinions, both in his report of 2 March 2006 and later, can be summed up by stating he accepts that the Applicant was symptom-free before being conscripted but suffered a minor lumbar strain whilst in basic training, from which he fully recovered. Although in his first report Dr Hope stated lumbar strains can take between six to 12 months to recover, he was unequivocal that if the Applicant had suffered any serious injury, he would not have been able to return to work in the coalmines.
31. Cross-examined in these proceedings, Dr Hope conceded that the tasks carried out the Applicant as then described to him were “not particularly onerous”.
32. Some support is found for the opinions of Dr Hope in the claims made by the Applicant against his employers in the New South Wales Workers Compensation Court. In a claim dated 18 October 1995, the particulars of the claim refer to “the nature and conditions” of the Applicant's employment and also refer to “heavy lifting, bending and pushing”, which allegedly placed undue strain on the Applicant’s back.
33. However, the particulars of the claim go on to state as to the nature of the injury, a L5-S1 disc degeneration caused by aggravation of a pre-existing injury.
34. The insurer of the Respondent's to the Workers Compensation claim, namely Coal Mines Insurance Pty Limited, were well aware that the Applicant claimed to have injured his back in the army.
35. In a report dated 31 July 1995 to Coal Mines Insurance, Orthopaedic Surgeon Dr Rowe took a history of the Applicant having a slow onset of back pain in the absence of any injury or accident whilst in the army and his eventually being discharged as medically unfit. Dr Rowe concluded his report by stating:
…
Mr Morris has marked lumbar spondylosis particularly at the lumbo sacral level. This has been a chronic problem since 1972 and for which the Department of Defence has apparently accepted liability.
…
36. Dr Lyons, Orthopaedic Surgeon, furnished a report to Coal Mines Insurance dated 6 May 1996. This followed an earlier report of 11 April 1995. In his 1995 report, Dr Lyons obtained a history of a two-day period of absence from work following the lifting of a junction box prior to the Applicant’s enlistment into the army, then of disabling back pain whilst undergoing basic training leading to discharge from National Service as medically unfit.
37. Dr Lyons concludes his report of 6 May 1996 by stating, “the disability in my opinion is largely idiopathic in aetiology, secondary to Scheuermann’s disease but there may have been some permanent aggravation by an injury suffered while in National Service”.
38. Dr Isaacs is a well-respected Orthopaedic Surgeon practising in Newcastle. He has examined the Applicant on several occasions. In a report dated 1 July 1992, he wrote to the Applicant’s general practitioner, stating:
…
I feel that Mr Morris is suffering from lower lumbar instability as well as an intermittent right sided sciatic nerve root irritation as a result of the damage to the disc at L5-S1 level that occurred in 1972, and was severely aggravated in the mining accident.
…
39. On 16 August 1994, Dr Isaacs forwarded a report to the Department of Defence at that Department's request. In that report Dr Isaacs states quite unequivocally, “His present disabilities are directly related to the injury which he sustained in 1972”.
40. In a later report dated 23 May 1995 to the Applicant’s solicitors, Dr Isaacs stated, after referring to his 1994 report to the Department of Defence:
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At that time I did confirm that in my opinion the only one conclusion I could come to was that his initial injury that took place in 1972, when he was doing National Service was the significant injury which started his symptoms in the back and in the right leg. The rest of the incidents and the type of work he was doing as a coal miner had merely aggravated his pain.
…
41. That the Applicant’s injury whilst undergoing national service was the initiating cause of his back problems, was also the opinion of Dr Stening, Orthopaedic Surgeon. In a report to the Department of Defence, dated 18 December 1975, Dr Stening states that the Applicant suffered from a lumbosacral intervertebral disc lesion which was aggravated by the nature of his employment.
42. In a later report dated 1 February 1977 to the Department of Defence, Dr Stening again stated that the Applicant suffered from a lumbosacral intervertebral disc lesion and that the effects of aggravation of that condition had not ceased and that the effect would be permanent.
43. Dr Hodgkinson, Orthopaedic Surgeon, saw the Applicant at that request of the present Respondent’s predecessor, Comcare, on 3 October 1995. Whereas Dr Hodgkinson diagnosed constitutional degenerative change in the lumbar spine, as did Dr Lyons, he opined “…army service would have partly aggravated his constitutional degenerative process”. He went on to refer to the Applicant’s work in the coalmines adding again however that constitutional degeneration had been partly aggravated by National Service physical activity.
44. The Respondent referred the Applicant for examination and report to Dr RL Thomson, consultant surgeon. In his very comprehensive report of 12 December 2002, Dr Thomson attributed 30 percent of the Applicant’s current disability to the injury sustained during National Service.
45. In passing, we would point out that since seeing Dr Hodgkinson in 1995 the Applicant has been referred to Drs Thomson and Hope. Starting with Dr Stening in 1975, every medical practitioner who has examined the Applicant on behalf of the Respondent (or its predecessors), with the exception of Dr Hope, has concluded that National Service was responsible for materially contributing to the Applicant’s current back injury. We also query why the Respondent finds it necessary to request a different orthopaedic surgeon to examine the Applicant on every occasion.
46. In the course of his evidence, Dr Hope correctly stated that degeneration seen on X-ray is not indicative of the level of incapacity experienced. Notwithstanding this, there is unequivocal evidence that the Applicant was severely incapacitated by back pain whilst undergoing National Service. That his degree of incapacity was severe enough to result in his discharge from National Service is, we find, indicative of serious rather than minor injury.
47. At the time of his discharge from National Service, an army medical board assessed his degree of incapacity for the general labour market as 35 percent, stating that disability was due to service.
48. In 1975 and again in 1977, that is to say not long after the event, the Applicant was examined for the Department of Defence by Dr Stening and on both occasions, Dr Stening implicated National Service as a cause of the Applicant’s disability. There is nothing in these proceedings that has shown the opinion of Dr Stening to be wrong. What can be said is that Dr Stening, like the army medical board and unlike Dr Hope, saw the Applicant relatively contemporaneously to the time of injury. As for Dr Hope’s opinion that the Applicant, if severely injured, could not have gone back to mining, this is answered by the opinion of Dr Lyons, that indeed the Applicant should not have done so. However, the Applicant is not to be penalised for stoicism and going back to an employment which, had by law, been reserved for him when he enlisted for National Service.
49. Some reference was made by the Respondent to reports written to solicitors by the Applicant’s general practitioner. We simply point to the different purposes for which those reports were written and have not based our decision upon them.
50. Given the Applicant's history of being affected by pain since undertaking National Service and the apparent severity of the injury at that time, we find that we are more persuaded by those specialist medical practitioners who implicate National Service as a material contributing cause to his ongoing incapacity, particularly those medical practitioners who gave the more contemporary reports.
51. Both Dr Best and Dr Isaacs consider that the Applicant’s current disability has been primarily a result of his work as an electrician in coalmines, although injury whilst undergoing National Service has made a material contribution to ultimate incapacity. The question of what proportion of current incapacity is caused by injury whilst undergoing National Service is a matter for the Respondent.
52. The decision of the Tribunal is that the decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely that the Respondent is liable to pay compensation to the Applicant pursuant to the Safety, Rehabilitation and Compensation Act 1988 for the injury described as “degenerative changes of the lumbar spine”.
53. As the question of costs was not raised by the Respondent during submissions, we have determined that unless, within 14 days from the date of publication of this decision, the Respondent notifies the Tribunal of any objections, the Respondent is to pay the Applicant’s costs of and incidental to these proceedings.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of MD Allen, Senior Member and Dr MEC Thorpe, Member
Signed: ...................[Sgd]..........................
AssociateDate/s of Hearing: 18 and 19 September 2008
Date of Decision: 17 October 2008
Solicitor for the Applicant: Turnbull Hill Lawyers
Counsel for the Applicant: Mr G Smith
Solicitor for the Respondent: Australian Government Solicitor
Counsel for the Respondent: Miss R Henderson
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