Morris and Military Rehabilitation and Compensation Commission

[2008] AATA 189

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION AATA 189

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2535

VETERANS’ APPEALS DIVISION		)
Re		DAVID MORRIS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal  M J Carstairs, Senior Member

Date 5 March 2008

Place Brisbane

Decision

The Tribunal sets aside the reviewable decision and remits the matter to the respondent to determine the amounts payable under s 24 and s 27 of the Safety, Rehabilitation and Compensation Act1988, on the basis that Mr Morris has an impairment of 20% under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment.

The parties have leave to file submissions in relation to costs within 14 days.  In the event that no submissions are filed in that period, then the respondent is ordered to pay the applicant’s costs in accordance with       s 67(8) of the Act.

.................[sgd].............................

SENIOR MEMBER

CATCHWORDS

COMPENSATION – back injury – impairment of lower limbs – claim for increase in permanent impairment – difficulty with grades steps and distances under Table 9.5

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 24, 25

Comcare v Fiedler (2001) 115 FCR 328
Canute v Comcare (2006) 226 CLR 535
Comcare v Moon [2003] FCA 569
Millen and Military Rehabilitation and Compensation Commission [2005] AATA 555
Whelan and Department of Defence (1996) 47 ALD 383
Morley and Comcare (1996) 40 ALD 725

REASONS FOR DECISION

5 March 2008   M J Carstairs, Senior Member

1.      In 1996 David Morris was assessed as 15% permanently impaired as a consequence of having sustained a “back injury resulting in lower back pain” (the injury) during training exercises in the Australian Army Reserve.  In this review, Mr Morris seeks an increase in that assessment, because he says that he has permanently impaired functioning of his lower limbs as a result of the back injury, which was not assessed when he was given the 15% rating.

2.      The legislation provides, however, that there can be no further payment for permanent impairment, after a first assessment, unless the additional impairment exceeds 10%, assessed in accordance with the Guide to the Assessment of the Degree of Permanent Impairment (the Guide)[1].

[1]         Safety, Rehabilitation and Compensation Act 1988, s 25(4).

3.      The respondent denies liability for payment of any increase, relying primarily on medical opinion that Mr Morris has no impairment of his lower limbs.

ISSUES

4.      The parties agree that any further assessment of permanent impairment in Mr Morris’s case must be undertaken in accordance with Table 14.1 of the Guide. This will entail adding any amount assessed for additional impairment to the 15% already awarded.  In so agreeing, it was common ground Mr Morris’s claim does not relate to a separate compensable “injury” but is further impairment arising from the initial injury[2]. 

[2]        This meant that the issues referred to by the High Court Canute v Comcare (2006) CLR 535 where assessment relates to further “injury” did not have to be addressed in this case.

5.      What I must decide is whether Mr Morris is entitled to an increase.This issue requires that I consider:

§  whether Mr Morris has impairment relating to the functioning of his lower limbs that would attract a rating under Table 9.5 of the Guide; and

§  whether this rating, when combined with the existing 15%, results in an increase of more than 10% in the degree of impairment.

BACKGROUND

6.      Mr Morris sustained the injury in 1993 when he undertook a fireman’s lift as part of Army recruit training.  The service medical reports reveal a frank injury that did not respond to treatment or rest, as reasonably might have been expected in a then 25 year old man.  Mr Morris was discharged from the Army on medical grounds the following year. 

7.      Since sustaining the injury, Mr Morris has twice required surgery for it.  In each instance this was undertaken by Dr R Fraser, spinal surgeon, who carried out an anterior L4/L5 bone graft in 1994, followed seven years later by a posterior spinal fusion at L4/ L5 in 2001.

8.      Mr Morris maintains that his condition has not improved significantly despite the surgery.  If anything, he claims he is worse now than before the surgery and he experiences limitations to the functioning of his lower limbs, as well as his back.  Much of his claim to limitation and impairment relies on his symptoms of pain when mobilising.

MR MORRIS’S EVIDENCE ABOUT HIS LOWER LIMB FUNCTION

9.      Mr Morris gave a detailed account of the effects of pain and its impact on his lower limbs in a written statement dated 25 September 2007[3]. The statement addressed in particular how this effects him when managing steps, slopes, and distances which are the matters addressed in the Guide when assessing lower limb impairment:

[3]        Exhibit A1.

“1.I constantly have pain which never goes away.  I have pain most severely in my lower back and each of my legs.  The pain gets stronger with more activity such as walking, bending, in fact all movement.

2.Steps:  When I go to walk up steps I need to be very careful that I don’t turn or twist.  I need to slow down to start to step upwards.  I get a pressure type of pain, sometimes it can feel like a crushing feeling starting in the back and then travelling down the leg, both front and back.  It makes me feel very conscious to hold on to the rail to walk up the steps due to the intensity of the pain and the feeling of a lack of balance.  The more steps that I go up the slower I need to go, and if I attempt too many steps (after approx 5 or 6) at once I start to feel sick or get a headache feeling.  I find going up the stairs harder because of the extra pressure on my back than coming down the stairs, however I still need to be conscious of the feeling of lack of balance and need to come down the stairs slowly.  The pain is slightly less when going down the stairs.  When available I prefer to go up or down steps with the aid of another person.

3.Slopes:  I try to avoid slopes like the plague because I find it too challenging and painful, same type of pain that I get with going up steps.  However if I do need to walk up a slope I need to change my position so that I can assist my movement in going up the slope.  I do this by leaning slightly forward and putting my hands on my thighs and assisting one leg at a time.  This seems to help support me if there is no rail.  I cannot attempt a slope that is too steep or too long.  Going down the slope, again it cannot be too steep or too long, I need to take extra care because I don’t have good balance and have similar pain when going down steps.  Again when available I prefer to go up or down slopes with the aid of another person.

4.Distances:  When doing anything I feel constant pain.  Pain increases even more when I start to move and this pain affects how far I can walk before I need a break.  On any day it may be anything from 10 steps to 1 km, before I can’t bear to go further and I need to stop.  I also get a tired feeling very easily and again the feeling of tiredness can be anything from 10 steps to 1 km.  The intensity is increased in cold weather so the distance I can go is shorter.  I am more comfortable walking on flat even ground.  Pain is more severe with uneven ground and again extra care needs to be taken.

5.My pain will reduce to its constant non-activity level after lying down for at least 30 minutes.  My pain is managed by taking morphine daily (Kapanol).  Without this pain management, my pain would be unbearable.   Pain is worse in the cold weather such as sharper pains and crushing feeling in the thighs.

6.My mobility is restricted due to pain located from the lower back which travels down each leg.  All movement causes some form of pain however movement is more restrictive and pain more severe with steps, slopes or uneven surfaces.  I have to take extra care because the pain escalates when attempting these activities.

7.I avoid public transport because I am uncomfortable with being in a crowded position.  Getting on and off transport can be a little difficult and I have an added fear that if I need to rush I will become off balanced and in turn cause more pain or injure myself.  When I am in a crowded confined space with no allocated seating I have less control on how to adapt my movements to lessen pain.  I am also a little embarrassed because I need to take the extra care and not everyone understands.

8.If I am in the car I need to take a break as often as possible and shopping and other activities are usually done with assistance.  I need to take extra care when getting out of bed in the morning and only feel more mobile once I take a warm shower.  I need to say though that none of this activity could take place without the pain being reduced by the use of pain medication.  If I try to reduce the medication I can’t bear the pain and find all movement is restricted to a point that makes me feel extremely frustrated.”

10.     More recently Mr Morris has been able to work full-time hours as a traffic controller, although previously he was thought to be totally incapacitated for work[4].  However, he says that his present work mainly involves him standing on flat ground, and he is required to walk very little.  He said that he does try to maintain his personal fitness with regular walks, usually undertaking a walk of about twenty minutes duration three times a week, for a distance he estimated as being about 1km.  Mr Morris said that he had not told Dr D Walters that he walks 1km daily, but thought he might have told him that he walks for 20 minutes.  Dr Walters accepted that Mr Morris was not necessarily intending to say that he walked every day; merely that he walks on average for a distance of 1km.

[4]         T23, Report of Dr G Wright, occupational physician, 25 May 1998.

11.     Mr Morris said that his mobility varies from day to day.  He does not, for instance, always need to use a handrail when walking up stairs.  However he said that he is conscious of leaning forward when walking up stairs, and tries to propel himself by leaning forward and pushing with his hand on the front of his thigh.   Mr Morris could not explain why Dr Walters might have recorded him as saying that walking up and down hills is no worse for him than walking on the flat.  Mr Morris said he experiences pain when ascending and descending stairs, but has come to regard pain as part of his life, as some degree of pain is always with him, varying only in intensity.  He observed that there are no stairs at his house, and would use a lift wherever available rather than attempt to use stairs.

12.     Mr Morris said that his injury has caused him to give up all sports that he previously enjoyed, and apart from walking for exercise he does little.

THE MEDICAL EVIDENCE

13.     A fuller appreciation of Mr Morris’s current presentation of symptoms comes from having regard to the extensive medical history.  This assists with an understanding of the nature of the injury and the course it has taken.  A brief summary will suffice.

14.     The history commences with the service medical records[5] revealing the originating injury in December 1993, following which Mr Morris’s symptoms did not abate.  The next year, x-rays revealed he had a posterior annulus tear, and the first surgery was recommended.  Dr Fraser was hopeful this would provide relief to Mr Morris[6], however this proved not to be the case.

[5]        T4.

[6]        T12.

15.     I observe that even in the earliest reports, Mr Morris was recorded as complaining of both soreness in his back and pain at the back of one leg[7].  At the hearing, Dr Walters observed that people who have symptoms of leg pain before surgery may continue to have it afterwards. 

[7]        T15, See also T17 Dr G Long, occupational physician and T25 Dr D Cullum, occupational         physician,

16.     As early as 1995, Dr Fraser described as permanent both symptoms affecting Mr Morris’s back and those affecting his legs.  When Dr Fraser carried out the second surgery in 2001, it was in an attempt to deal with the chronicity of Mr Morris’s symptoms.  Nevertheless, after the second fusion, which X-rays indicated was well-consolidated, Mr Morris was not symptom-free[8].  When Dr Fraser reviewed him in 2004, Mr Morris was still complaining of unbearable pain, as well as numbness in the left leg, extending to the knee and foot.  Dr Fraser thought at this time that Mr Morris was capable of no more than 12 hours light work per week.

[8]        T34.

17.      Mr Morris has seen a number of other specialists and from their reports I note the following:

§  Dr G Wright, occupational physician, said of Mr Morris in 1998 (then aged 29) that he had obtained limited benefit from a pain management programme and still had back and leg pain despite the first surgery[9].  Dr Wright diagnosed Mr Morris as having a chronic pain disorder[10].

§  Dr D Cullum, consultant occupational physician, considered Mr Morris had major impairment from his injury. 

§  In 1998 Professor R Goldney, consultant psychiatrist, advised the respondent  that Mr Morris suffered from a permanent pain disorder that had been caused by his employment in the Army[11].

[9]        T22.

[10]        T22, T23 and T25 Dr Cullum.

[11]        T26.

18.     And thus we come to the current medical assessments of Mr Morris’s lower limb function.  These were the reports of Dr Walters, orthopaedic surgeon, and Dr B Purssey, specialist in orthopaedics and general surgery[12]. Their conclusions in summary form were as follows:

§  Dr Walters found that Mr Morris demonstrated no objective evidence of impaired lower limb function.  According to Dr Walters, Mr Morris exhibited no measurable restriction when tested over grades, steps, and distances.  Dr Walters rated him with NIL impairment under Table 9.5.

§  Dr B Purssey on the other hand assessed Mr Morris as having 20%  impairment, meeting the description of a person demonstrating difficulties with grades, steps, and distances in Table 9.5.

[12]        T35 and T36, respectively.

19.     Given these very different conclusions, it is worthwhile to consider Dr Walters and Dr Purssey’s observations of Mr Morris in more detail. 

dr walters’ report

20.     Dr Walters took from Mr Morris the following account of his symptoms:[13]

“His low back and lower limb pain is constant and is not changed by sitting or walking.  It does not seem to be aggravated or relieved by anything in particular.  Lying down does not help the pain when it is severe…He walks for fitness and averages about 1km per day…Walking up and down hills is no worse than walking on the flat.  Going up steps, however, is more painful than on the flat, but he does not have to hang on to a handrailing…On the day I interviewed him, the left lower limb pain was worse than the right lower limb pain and it was situated mainly in the back of the thigh.”

[13]        T35 at 123.

21.     Mr Morris told Dr Walters that his pain spreads to his lower limbs on each side, over all surfaces and to the soles his feet.  Dr Walters observed that the reported pain was not localised to a nerve root distribution. 

22.     As to clinical observations, Dr Walters observed that Mr Morris walked on flat ground with no limp and with no difficulty.  He observed no limp or difficulty when Mr Morris navigated a slope, although Mr Morris complained to him of pain in doing so.  When Dr Walters conducted testing on stairs, he observed that Mr Morris ascended without using a handrail but complained of pain when ascending but not descending.  Dr Walters said that if Mr Morris had inclined forward and used a hand on his thigh to assist himself (as he had described in his evidence) he would have noted that in his report.

23.     Dr Walters said that he believed he had recorded correctly that Mr Morris told him that he walked 1km daily, but Mr Morris said that it was just an average of what he could walk, not necessarily every day.  He agreed that Mr Morris would not be capable of walking 5kms. 

24.     Dr Walters observed generally that Mr Morris’s signs do not fit with his pathology.  In that context he used the term “not organic”, by which he said he meant signs that do not fit with the usual anatomy of the body.  When Dr Walters was asked about how he took into account the complaint of pain, he said that pain is ignored unless there is a physical manifestation of it.  Dr Walters said that the pain Mr Morris experiences is real to him, but the medical assessment must be of physical signs.

dr purssey’s report

25.     Dr Purssey recorded as part of his report that he observed no signs of illness behaviour on Mr Morris’s part.  That is, Dr Purssey was satisfied that Mr Morris worked to the best of his ability and was not feigning symptoms.  Mr Morris told him that he experienced pain down the back of both thighs, and down the back of both calves to his feet.  He told Dr Purssey that he finds it difficult to mobilise in the morning but a hot shower helps.  He also said that his pain in worse on some days than on others, but that generally his pain is aggravated by any movement..

26.     Mr Morris told Dr Purssey that he could walk for 10 to 15 minutes before needing to stop and rest, and he has pain while he is walking.  He also described experiencing pain when ascending stairs; rather less when descending.  

27.     As to the clinical assessment, Dr Purssey said that he measured Mr Morris over a distance of about 150 metres and on a moderately steep slope up and down.  He observed Mr Morris to proceed more slowly with the increase in the gradient.  He described Mr Morris's performance as not what would be expected of a 38-year-old.  As to distances, Dr Purssey said that he would expect a 38-year-old to manage a 5km distance with no difficulty, but when he tested Mr Morris on the 150 metre test track his speed was much slower than expected..  On most tasks on which Dr Purssey tested him, Mr Morris reported experiencing pain.  Dr Purssey said that on stairs, Mr Morris was extremely slow and used the handrail.  On the basis of these clinical findings Dr Purssey was satisfied that Mr Morris met the description at 20% under Table 9.5.

WHAT IS THE LEVEL OF IMPAIRMENT?

28.     The Guide provides for Impairment Tables as the basis of assessment of the degree of permanent impairment.  “Impairment” is defined in the Act as the loss of use, damage or malfunction of any part of the body, or bodily system.  There was no dispute here that impairment was permanent[14]. In that regard, Dr Walters observed that in spite of technically successful surgery, Mr Morris’s symptoms have not been alleviated.

[14]  T36 at 136 and T35 at 127.

29.      The Introduction to the Guide explains that each Table contains a description of the level of impairment and assigns a percentage of “whole person impairment”, as a figure reflecting the impairment of the person’s functional capacity when compared with a normal healthy person.  Following this format, Table 9.5, for lower limb function,  provides the following descriptions at the level of 10% and 20%:

“10Can rise to a standing position and walk BUT has difficulty with grades and steps.

20 Can rise to standing position and walk BUT has difficultly with grades, steps and distances.”

30.     The Full Federal Court in Comcare v Fiedler (2001) FCR 328 observed of the term “difficulty” (considered in the context of “difficulty with dexterity”) that something more than a minimal problem is required. However, if a person, as a result of their injury, finds it troublesome or not easy to do a task, the word “difficulty” will be correctly applied to describe that.

31.     Mr C Clark, counsel for the respondent, submitted that there was too much difference between Dr Walters’ clinical observations and those of Dr Purssey to accept Mr Morris as reliable.  Mr Clark suggested that Mr Morris only learned what he needed to demonstrate to achieve a rating under Table 9.5 after he had been examined by Dr Walters, that is, before he was examined by Dr Purssey.  Mr Clark submitted that this was a sufficient explanation for the different results.  However Dr Walters acknowledged in his oral evidence and in his written report that Mr Morris had been troubled by pain when ascending stairs and when walking up a slope.  In his oral evidence Dr Walters acknowledged that Mr Morris could not walk 5kms. 

32.     The extensive range of medical reports from different specialists, since Mr Morris sustained the injury, confirmed that the doctors accepted the genuineness of his claims and that he gave an honest account of his symptoms.  The reports are confirming of a real disability despite the fact that Mr Morris’s symptoms have been difficult to explain on an organic basis.  My own perception of Mr Morris at the hearing was that he gave an honest account of his symptoms, frankly and without embellishment.

33.     I was satisfied, as was Dr Purssey, that when Mr Morris carried out tests he was not feigning symptoms.  I thought Mr Morris was reliably reporting his symptoms and that where differences were noted (as between the reports of Dr Walters and Dr Purssey) these can be explained on other grounds.  Mr Morris acknowledges that his mobility varies, as do his pain levels.  However, I accept that his pain is a constant in his life, as is confirmed by his being prescribed daily doses of a morphine based medication.   The seriousness of his injury was not in doubt, and was well supported in extensive medical history provided to me.    

34.     I do not see the conclusions of Dr Walters and Dr Purssey as so far apart as to be inconsistent with one another. The difference, I apprehend, was in the approaches taken to applying the Guide.  In that regard Mr R King-Scott, counsel for Mr Morris submitted, that I should be mindful of the Federal Court decision in Comcare v Moon [2003] FCA 569.. Mr Clark submitted that I should apply the approach referred to by the Tribunal in Millen and Military Rehabilitation and Compensation Commission [2005] AATA 555. I do not see those cases as inconsistent with one another. Moon is authority for the proposition that a restriction arising as a result of pain is assessable under the Tables. 

35.     I was satisfied that while Mr Morris can undertake the tasks that he was tested upon in relation to grades, steps, and distances, he does so with pain, and this comes within what must be assessed under Table 9.5.  From Mr Morris’s evidence he has difficulties with grades and steps, and if he is using steps or navigating grades he experiences pain which prevents him continuing for any distance.  He has to take care not to overbalance. Dr Purssey was right to conclude that, when compared with the average 38 year old, Mr Morris is restricted in all these activities, that is, he has difficulty with them and it is more than a minimal difficulty.

36.     Where distances are being considered under Table 9.5 of the Guide, it is distances expected to be traversed by a normal healthy person of the same age as the applicant.  This approach was confirmed in Re Whelan and Department of Defence (1996) 47 ALD 383 at 399 and Re Morley and Comcare (1996) 40 ALD 725 at 731. I accept Dr Purssey’s evidence that a man of Mr Morris’s age should be able to walk five kilometres.

37.     For these reasons, I prefer Dr Purssey’s conclusions that Mr Morris’s impaired functioning of his lower limbs attracts a rating of 20% under Table 9.5.  I consider that Dr Walters’ conclusion that Mr Morris has no lower leg impairment was plainly wrong.  In oral evidence Dr Walters acknowledged that Mr Morris has a problem with grades and stairs.  I thought that, overall, Dr Purssey provided a more accurate assessment of Mr Morris’s symptoms and properly took into account the impact of pain upon what Mr Morris can do when mobilising. 

38.     When account is taken of the whole of the evidence, not only the medical reports but Mr Morris’s description of his limitations, I was satisfied that Mr Morris lower limb functioning is limited in ways that meet the description of an impairment of 20% under Table 9.5, namely being able to rise to a standing position and walk but having difficulty with grades steps and distances. 

39. The lump sum amount of compensation payable is calculated by reference to the “degree of permanent impairment” which, under s 24(5), is to be determined in accordance with the provisions of the Guide. Under s 25(4) of the Act no further amounts of compensation are payable for an increase in permanent impairment unless the increase is 10% of more. Applying Table 14.1, by taking into account the 15% already assessed and combining the now assessed 20%, results in a whole person impairment of 32%. The respondent consequently is liable to pay an additional 17%, and I remit this accordingly to the respondent for assessment under s 24 and s 27 of the Act accordingly.

DECISION

40. The Tribunal sets aside the reviewable decision and remits the matter to the respondent to determine the amounts payable under s 24 and s 27 of the Safety, Rehabilitation and Compensation Act1988 on the basis that Mr Morris has impairment of 20% under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment.

41.     The parties have leave to file submissions in relation to costs within 14 days.  In the event that no submissions are filed in that period, then the respondent is ordered to pay the applicant’s costs in accordance with s 67(8) of the Act.

I certify that the preceding 41 paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.

Signed:         …………………[sgd]………………………………..
  Joan Torbey, Associate

Date of Hearing  5 February 2008
Date of Decision  5 March 2008

Counsel for the Applicant         Mr Robert King-Scott
Solicitors for the Applicant        Slater Gordon    

Counsel for the Respondent     Mr Charles Clarke

Solicitors for the Respondent    Dibbs Abbott Stillman Lawyers