Muggleton and Comcare
[2008] AATA 883
•3 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 883
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5070
GENERAL ADMINISTRATIVE DIVISION ) Re ROSS MUGGLETON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date3 October 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................[Sgd].......................
Member
CATCHWORDS
COMPENSATION – Injury – series of injuries during employment – incapacity – incapacity due to successive aggravations of pre-existing spondylolisthesis L5/S1 – compensation paid for associated incapacity – aggravations temporary in their effect – aggravation no longer contributing to incapacity – cessation of compensation - decision under review affirmed.
Compensation (Commonwealth Government Employees) Act 1971 ss 27, 45(2A) and 39
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19
Casarotto v Australian Postal Commission (1989) 86 ALR 399; (1989) 17 ALD 321
Martin v Australian Postal Corp [1999] FCA 655; (1999) 29 AAR 420Australian Telecommunications Corporation v Davis (1991) 30 FCR 467
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157REASONS FOR DECISION
3 October 2008 Mr R G Kenny, Member DECISION UNDER REVIEW
1. Mr Ross Muggleton received incapacity payments in accordance with the terms of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) and its successor the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) periodically from 1981 and since he last worked in 1987. This was in relation to employment-related aggravation of a lower back condition. On 7 May 2007, Comcare determined that the aggravation no longer materially contributed to Mr Muggleton’s incapacity and that, as a result, it was no longer liable to pay compensation for medical expenses or incapacity benefits under s 16 and s 19, respectively, of the Act. That decision was affirmed in the reviewable decision dated 24 August 2007.
BACKGROUND
2. Liability was initially accepted with compensation and medical expenses paid to Mr Muggleton under ss 27, 45(2A) and 39, respectively of the 1971 Act. This was for “low back pain” resulting from an injury to Mr Muggleton on 9 November 1981 while he was employed as an apprentice carpenter with the Department of Housing and Construction. On 21 December 1982, 30 July 1985 and 21 March 1988, further claims were accepted by Comcare in relation to Mr Muggleton’s back. These were for aggravation of spondylolisthesis L5/S1 resulting from an injury on 11 January 1982, disc lesion resulting from an injury on 9 May 1985 and aggravation of spondylolisthesis L5/S1 resulting from an injury on 8 October 1986.
3. On 26 May 1987 and 1 October 1987, Mr Muggleton was assessed by a Commonwealth Medical Officer (CMO), Dr R Ward, as being unfit to perform his duties. On 29 October 1987, Dr Ward recommended that he be retired on medical grounds. In May 1996, Mr Muggleton received $270,000 in settlement of a common law damages claim against the Commonwealth of Australia. In accordance with s 99 of the 1971 Act, Comcare recovered $152,588.78 from that sum. Mr Muggleton’s retirement on medical grounds was formally approved by the Department of Finance and Administration on 17 November 1998. Compensation payments to Mr Muggleton resumed from July 2003.
4. Comcare conducted a review of Mr Muggleton’s circumstances in 2007. This involved an analysis of the many medical reports prepared since 1981 and a further report, dated 27 February 2007, from consultant physician, Dr Edward Ringrose. As noted above, Comcare determined that it was no longer liable to pay compensation because the accepted condition no longer materially contributed to Mr Muggleton’s incapacity.
MEDICAL EVIDENCE
5. In evidence were medical reports relating to Mr Muggleton’s back condition from his general practitioners in the 1980s Dr J Nearhos and Dr R Keyes; from his current general practitioner Dr R Malone; from orthopaedic surgeons Dr G Anderson, Dr G Douglas, Dr R Gibberd, Dr W Todd, Dr B Martin, Dr E Jamieson and Dr S Journeaux; from specialist in rehabilitation medicine Dr R Watson; from CMO Dr R Ward; from consultant physician Dr E Ringrose; from Senior Medical Officer Dr E Castrisos; from Dr D Hood from Health Services Australia (HSA); from occupational physician with HSA Dr G Knight; as well as various radiology, occupational therapy, physical therapy, occupational therapy and rehabilitation counsellor reports. I have read all of those reports. Dr Jamieson was called to give evidence but was not cross-examined. Dr Journeaux also gave oral evidence and was briefly cross-examined.
6. Dr Nearhos saw Mr Muggleton on the day following the incident on 9 November 1981. He prepared a compensation certificate on 10 November 1981 where he referred to “lifting at work” as the cause of Mr Muggleton’s injury. Apart from the time for the medical examination, no period off work was certified. Subsequent certificates were issued by Dr Nearhos on 11 January 1982, 18 January 1982 and 26 January 1982 in relation to other injuries. These referred to Mr Muggleton “lifting at work”. Dr Nearhos also completed a detailed report, dated 23 February 1982, in which reference is made to “bending and lifting at work” as the cause. In that report, Dr Nearhos declared that Mr Muggleton had experienced the back pain on and off for 12 months before the injury on 10 November 1981 and he described it as “low back pain related to spondylolisthesis of left L5 pedicle” which resulted from an “aggravation of a pre-existing condition”. He considered that the effects could be permanent.
7. Dr Anderson, in his report dated 24 June 1982, diagnosed spondylolisthesis L5/S1 with an associated spondylolysis with narrowing of the L4/5 disc. He considered that this suggested superadded degeneration. He described the state of affairs as being the result of natural progression of a constitutional condition with an aggravation on 9 November 1981 which was temporary and which would settle within a month.
8. Dr Keyes, and another doctor in his practice, provided certificates dated 3 June 1985, 18 June 1985 and 1 July 1985. These describe a disc lesion of the lumbar spine due to an “accident at work” while Mr Muggleton was working in Townsville. Dr Keyes completed a report, dated 18 July 1985, where he referred to an “acute lumbar disc lesion”, a lack of knowledge of any pre-existing back complaint and an absence on work restrictions at that time. In a further report, dated 29 December 1986, he commented on a lifting injury sustained by Mr Muggleton to his back in October 1986. He referred to the possibility that he aggravated a previously weak back but he expected him to make a full recovery. Dr Keyes also reported on 30 August 1987 of a complaint of back pain. He described the effects of the earlier injury in 1985 as having ceased and noted that, on his last visit, Mr Muggleton was pain free and had normal movement.
9. Dr Douglas completed reports on 23 September 1985, 24 August 1987, 4 December 1987 and 23 October 1989. He diagnosed spondylolisthesis L5/S1 and described it as a natural progression of a pre-existing condition which was aggravated by work-related incidents. His opinion in the second report was that the effects of the aggravation were temporary in nature, that Mr Muggleton would benefit from a physiotherapy program but that he should not return to work as a carpenter. In his third report, he described Mr Muggleton as being severely incapacitated and as not being able to ever return to work as a carpenter. In his final report, he opined that Mr Muggleton may be capable of part-time work as a building inspector. Dr Douglas also relied on Mr Muggleton’s account of a 3 metre fall onto his back in November 1981 and to a subsequent period of 2 months off work.
10. Dr Ward completed reports dated 17 June 1987, 11 August 1987, 4 September 1987, 2 October 1987, 2 November 1987, 16 November 1987 and 25 September 1989. After reviewing Mr Muggleton’s situation on several occasions, Dr Ward recommended that he be retired on medical grounds. Dr Castrisos, in his report (undated), noted the opinion of Dr Ward and said that the matter of compensation was different from that of continuing employment.
11. Dr Watson, in a report dated 1 October 1990, diagnosed spondylolisthesis L5/S1 and considered this was a consequence of the fall in November 1981. In describing the fall, he said that Mr Muggleton told him that he “half fell, half caught himself, landing seated and then backward onto the flat of his back” and was off work for 2 months. Dr Watson also considered that the spondylolisthesis L5/S1 probably pre-existed the fall but considered that the fall may have traumatically induced it. He concluded that the fall was the cause provided there was no history of progressive low back pain prior to the fall. His opinion was that Mr Muggleton would not be able to work as a carpenter.
12. Dr Gibberd, in his report dated 14 July 1992, described a pre-existing spondylolisthesis but considered that the 1981 incident was the continuing cause of his problems. Dr Gibberd relied on Mr Muggleton’s account of a 3 metre fall onto his back at that time followed by a period of two weeks off work. Dr Gibberd noted that two months was the duration of time off work referred to by Dr Douglas and Dr Watson.
13. Dr Todd, in his report dated 3 November 1993, diagnosed lumbar disc degeneration. He referred to the incident on 9 November 1981 and, in the context of information provided to him that there was no 3 metre fall, he considered that the injury would have been caused by the incident but that it would have been short-lived. He referred to Dr Anderson’s report and to his reference to an X-ray taken within 6 months of the injury. Dr Todd concluded that the presence of the deterioration noted by Dr Anderson would not have occurred in that short time-frame and he concluded that there must have been pre-existing degenerative disc disease at the L4/5 level. He considered that the effects of the injury, being unrelated to a fall but to reaching out to cut a piece of timber, would have been short-lived. He wondered whether the extent of the L4/5 damage reflected a pre-1981 injury. Dr Todd described Mr Muggleton as being unfit for work but considered that the minor injuries he experienced at work would not have contributed greatly to his long term problem.
14. Dr Hood’s report, dated 30 September 1998, was concerned with Mr Muggleton’s capacity for work. He described a long-term back condition which would prevent Mr Muggleton from undertaking employment or rehabilitation. Dr Knight, in a report dated 7 October 1998, agreed with Dr Hood’s opinion.
15. Dr Malone provided reports dated 10 April 2001, 1 August 2006 and 15 September 2008, the date of the hearing. Mr Muggleton’s evidence was that he has treated him for about 10 years and sees him as needed, usually on an annual basis. Dr Malone described a fall from building in 1981 and expressed the opinion that he had aggravation of spondylolisthesis L5/S1 due to the fall, that he had no previous back complaints, that he was permanently incapacitated and unemployable due to the condition.
16. Dr Martin, in his report dated 7 November 2001, described significant degenerative narrowing of the L4/5 disc space and at the L5/S1 level with a minor spondylolisthesis L5/S1. He considered that Mr Muggleton was difficult to assess because of inappropriate and inconsistent signs as well as overt pain behaviour. His opinion was that Mr Muggleton has an exacerbation of symptoms resulting from pre-existing pathology in the lower lumbar spine. Dr Martin referred to the symptoms that arose in Mr Muggleton from time to time in his employment and concluded that these were a manifestation of exacerbation arising from long-standing pre-existing and deteriorating condition of his lumbo-sacral spine. He considered that each exacerbation was likely to be short-lived, lasting days or weeks only, before Mr Muggleton’s back returned to its pre-injury state.
17. Dr Jamieson completed reports on 14 March 2005 and 3 May 2005. He diagnosed spondylolisthesis L5/S1, which he described as a pre-existing condition, and lumbar spondylosis L4/5 which he considered to be a natural progression. Dr Jamieson was advised of the 3 metre fall as the precipitating cause of the initial injury. In his second report, Dr Jamieson advised that Mr Muggleton had told him that he had not fallen from a roof but had slipped and had caught himself before he fell. He considered that it was unlikely that Mr Muggleton’s employment continues to contribute to his back conditions. His opinion was that the effects of work injury could reasonably be expected to have resolved within a matter of months or, at the most, 12 to 18 months. He referred to inconsistent aspects of his clinical examination of Mr Muggleton with voluntary restriction of spinal movement and marked limitation of leg raising in the absence of any neurological deficit. He thought that the compensable condition may have been superseded by a chronic pain condition. Dr Jamieson’s opinion was that Mr Muggleton has no capacity to work as a carpenter.
18. Dr Ringrose completed a report on 27 February 2007. He diagnosed degenerative changes to the lumbar spine and minimal spondylolisthesis L5/S1. He described Mr Muggleton as having become a chronic invalid without much pathology to support it. He considered that the traumas he experienced resulted in acute exacerbations aggravating the underlying degenerative change as part of the natural ageing process. He described the exacerbations as temporary and said that his Commonwealth employment was not contributing to his current condition. Dr Ringrose was of the opinion that Mr Muggleton was capable of working but said that, because of the length of time out of the work force, he had become seriously deconditioned and would not be able to do heavy work though he did not rule out a sedentary occupation. Dr Ringrose denied the presence of any cutaneous signs to support a diagnosis of regional pain syndrome.
19. Dr Journeaux completed a report on 2 May 2008. In relation to the incident on 9 November 1981, Dr Journeaux reported that Mr Muggleton was able to stop his fall directly onto the ground but landed on his backside. Mr Muggleton also detailed the other incidents that occurred in the 1980s. He diagnosed spondylolisthesis L5/S1 as well as degenerative changes at the facet joints at this level. Dr Journeaux described spondylolisthesis L5/S1 as an acquired condition and a constitutional one. He identified a superimposing on this of constitutional changes in the lumbar spine. He described the November 1981 incident as a minor aggravation of degenerative symptoms in a constitutionally vulnerable spine. He considered that it was a temporary aggravation which would be short-lived with full recovery within three months or so. Dr Journeaux’s opinion was that there is no material contribution from Mr Muggleton’s employment to his current condition with any work element resolved within five years of ceasing work. His opinion was that any subsequent symptoms are constitutional in nature and would be the same today regardless of any aspect of Mr Muggleton’s employment. Dr Journeaux considered that Dr Journeaux was not capable of undertaking employment. He considered that there may be cause for him to be assessed by a psychiatrist or a psychologist to ascertain whether there are any premorbid psychosocial factors contributing to the prolongation of his symptoms.
MR MUGGLETON’S EVIDENCE AND SUBMISSIONS
20. Mr Muggleton gave the following evidence. He lives with his wife and their three children on a small acreage property west of Mackay. His wife works and he remains at home. He experiences pain in his lower back on most days in the range of 2 to 10 with 10 being the maximum on the scale. The pain can remain at the severe level for days at a time and this prevents him from carrying out daily activities. His wife assumes responsibility for maintenance tasks on the property. He believes that his back condition is related to the injuries he received from 1981 to 1987 in his employment with the Commonwealth.
21. As to the 1981 incident, he said that he did not fall directly to the ground and was able to break his fall but still landed on the ground on his backside. Mr Muggleton has completed various statements about the incident. On 11 March 2002, he confirmed the 3 metre fall and referred to it as having been witnessed by a leading hand plumber and reported upon by his supervisor, Robert Walker. He denied telling Dr Nearhos that he had back problems before the incident but conceded that he may have referred to having tired muscles. He referred to the X-rays taken on 10 November 1981 as confirming that there was no pre-existing back injury. Mr Muggleton was critical of Dr Martin’s report and, in particular, of the descriptions he gave of limitations of movement. He said that this had occurred because of pain.
22. In a statement dated 29 May 2007, Mr Muggleton was also critical of the report of Dr Ringrose. He described him as “running late, abrupt and agitated”, as being unprofessional and as being misinformed about the accident history.
23. Mr Muggleton submitted that his back condition was permanent and that he was unable to engage in employment. To those ends, he relied on the reports of Dr Todd, Dr Watson, Dr Douglas, Dr Gibberd, Dr Ward, Dr Nearhos and Dr Malone. He submitted these reports should be preferred to those of the other doctors.
MR CLARK’S SUBMISSIONS
24. Mr Clark submitted that the preponderance of medical evidence supported Comcare’s decision that the effects of Mr Muggleton’s aggravation of spondylolisthesis L5/S1 had been resolved and were no longer impacting on his employment capacity. He submitted that greater weight should be accorded specialist opinions rather than others that were in evidence and, in particular, submitted that the more recent reports of Dr Ringrose, Dr Jamieson and Dr Journeaux should be followed. Further, he submitted that, in considering the reports of Dr Douglas and Dr Ward, it should be noted that these were concerned with the issue of retirement on medical grounds rather than issues of compensation.
25. While accepting that a compensable injury occurred in November 1981, Mr Clark referred to the account given by Mr Muggleton to various doctors concerning the cause of that injury. He submitted that there was real doubt as to whether Mr Muggleton ever had a fall of the severity he claimed and that such an account may have served to influence some of the medical opinions.
CONSIDERATION
26. Mr Muggleton has not provided a consistent history of the cause of his back problem, in particular, in relation to the injury on 9 November 1981. He has advised various medical practitioners that he fell a distance of about 3 metres onto his back while working at a building site. He referred to eye-witness and accident reports which support him. These were in evidence and, as I read them, they do not provide that support. An undated statement, completed by an eye-witness, refers to Mr Muggleton “cutting timber in an awkward position so as to put severe strain on back”. Another undated statement by a witness who heard Mr Muggleton call out at the time of the injury described him as “cutting rafter in off-balance position, thereby his back would have been in a strained position”. An accident report, dated 19 November 1981 and signed by Mr Muggleton, refers to his being in an “awkward position while cutting” and to “cutting out of balance position, slipped causing strain”. An accident analysis form gives the following description:
“While cutting off roof rafter, apprentice was on roof approx 2.4 metres above ground and reaching out to make the last cut on overhang and was in process of cutting when he felt injury”.
27. There is a complete absence of any reference to a fall in those documents. This is consistent with what Mr Muggleton wrote in his claim form, dated 11 November 1981. There, he referred to back strain being caused when he was “cutting timber on roof – keeping balance”. It is also consistent with the description of the cause of the injury, noted above, in several reports by Dr Nearhos, whom Mr Muggleton saw the day after the injury. Dr Douglas relied on Mr Muggleton telling him that he fell from a roof some six years earlier and as being off work for 2 months as a result. Dr Gibberd relied on such a fall and 2 weeks off work. Dr Watson relied on a lesser fall but also a period of 2 months off work. The compensation determinations and the report of Dr Nearhos, dated 23 February 1982, show that he took only 2 hours off work for the purpose of seeing Dr Nearhos and was compensated for that time only.
28. I have noted Mr Muggleton’s criticisms of Dr Martin and Dr Ringrose. I also note that the comments made by them about his movement limitations are consistent with other medical opinion, in particular, that provided by Dr Jamieson. During the hearing, Mr Muggleton chose not to cross examine Dr Jamieson and did not require Dr Ringrose to give oral evidence. I do not accept Mr Muggleton’s criticisms.
29. On the contemporaneous material, I am satisfied that Mr Muggleton did not fall directly to the ground for a distance of 3 metres on 9 November 2001. I note that, in descriptions to Dr Watson, Dr Jamieson and Dr Journeaux, he modified his version of the fall to one where he had been able to break his fall though still landing on his buttocks. The specific cause of the injury is not directly relevant in this matter. A back injury occurred at work on 9 November 1981 and Comcare has accepted liability for associated incapacity. However, the description of a direct fall onto the back followed by a substantial period off work may lead a medical practitioner to take a different view of the injury than if it were caused by a lesser fall and an almost immediate return to work.
30. I am satisfied that the diagnosis which emerges from the many reports in this matter is spondylolisthesis L5/S1. Mr Muggleton is significantly affected by it and almost all of the medical reports are in terms that, as Mr Muggleton submitted, the condition is permanent and has rendered him to a point where he in no longer capable of undertaking employment. Those matters are not in dispute.
31. The issue for determination is whether any employment related condition contributes to Mr Muggleton’s present incapacity. Under s 14 of the Act, compensation is payable in relation to an “injury” and that term is defined in s 4 of the Act to include an aggravation of an injury. The conditions accepted by Comcare are aggravations of Mr Muggleton’s spondylolisthesis L5/S1. Even the first accepted condition, low back strain, was described by Dr Nearhos, who saw Mr Muggleton at the time, as an aggravation of a pre-existing condition. That has been the opinion expressed over a 26 year period by specialist practitioners in relation to Mr Muggleton’s injuries from Dr Anderson in 1982; Dr Douglas in 1985; Dr Keyes in 1986; Dr Gibberd in 1992; Dr Martin in 2001; Dr Malone in 2001; Dr Jamieson in 2005; Dr Ringrose in 2007; and Dr Journeaux in 2008.
32. In Casarotto v Australian Postal Commission[1], in relation to a claim under the 1971 Act, the employee was suffering from a degenerative disease of the lumbar spine which had been aggravated by a series of work-related incidents. Each of these incidents was described as something from which the applicant had "completely recovered", or the effects of which were "short-lived", or as "fairly trivial". Hill J concluded that it had been open to the Tribunal to find the employee's disability at the time of the hearing was entirely unrelated to his work[2]. That decision was followed in Martin v Australian Postal Corp[3]. There, Burchett J said that Casarotto should be understood as an instance of minor injuries that did not produce any acceleration or significant aggravation of the underlying condition and where the aggravation had been but evanescent in its effects[4].
[1] Casarotto v Australian Postal Commission (1989) 86 ALR 399.
[2] Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 411.
[3] Martin v Australian Postal Corp [1999] FCA 655.
[4] Martin v Australian Postal Corp [1999] FCA 655 at [27]-[28]. See also the comments of Heerey J in Australian Telecommunications Corporation v Davis (1991) 30 FCR 467 at 473-474 and Salisbury v Australian Iron and Steel Ltd (1943) 44 SR(NSW) 157 at 164-165.
33. General practitioners Dr Nearhos and Dr Malone considered that the aggravation of Mr Muggleton’s condition may be permanent. Clearly, they are not specialists and Dr Nearhos has not seen Mr Muggleton for many years. In any event, that was not the opinion of orthopaedic surgeon Dr Anderson who saw him in May 1982, only 3 months after the report of Dr Nearhos. Dr Gibberd also considered that the effects of the 1981 incident were continuing. However, Dr Gibberd relied on the initial injury as resulting from a 3 metre fall by Mr Muggleton on to his back and a subsequent period of two weeks off work. I am satisfied that this does not represent the history of the event and that it may have heightened Dr Gibberd’s perceptions of the extent of the injury. Dr Todd’s opinion was that effects of Mr Muggleton’s injuries would not have contributed greatly to his long term problems which lends support for a continuing contribution from Mr Muggleton’s work-related injuries. However, I note that, somewhat equivocally, Dr Todd also describes the injuries as being short lived.
34. In the absence of other evidence, those opinions may have prevailed in this matter. Significantly, though, there is strong specialist medical support for the view advanced by Mr Clark that the effects of the work-related injuries had ceased by the time Comcare made its decision. That is the opinion in the reports of Dr Anderson, Dr Douglas and Dr Martin as well as in the more recent reports of Dr Jamieson, Dr Ringrose and Dr Journeaux. On the basis of that evidence, I am satisfied that there are no continuing effects from the aggravations to Mr Muggleton’s spondylolisthesis L5/S1 and that compensation under s 16 and 19 of the Act is no longer payable to Mr Muggleton from the date of the initial decision by Comcare on 7 May 2007.
35. Before leaving the matter, I note that Dr Jamieson raised the issue of whether Mr Muggleton’s compensable condition may have been superseded by a chronic pain condition. However, as I read his report, this was specifically denied by consultant physician, Dr Ringrose.
CONCLUSION
36. I am satisfied that the effects of Mr Muggleton’s employment-related injuries no longer contribute to his incapacity.
DECISION
37. The decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: .......................[Sgd].........................................................
Elizabeth Young, Research AssociateDate/s of Hearing 15 September 2008
Date of Decision 3 October 2008
For the Applicant the applicant was self represented
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Mr P Nolan
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