Nelson and Military Rehabilitation and Compensation Commission

[2006] AATA 313

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 313

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/97

GENERAL ADMINISTRATIVE  DIVISION

Re:            PHILLIP NELSON

Applicant

And:MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal:       Mr Egon Fice, Member

Dr P.D. Fricker, Member

Date:5 April 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review

(sgd) Egon Fice

Member

MILITARY REHABILITATION AND COMPENSATION COMMISSION – permanent impairment – non‑economic loss ‑ degenerative cervical spine disease with disc prolapse and intermittent radiculopathy affecting the left upper limb – whether loss of half of normal range of movement ‑ whether entitled to lump sum

Safety, Rehabilitation and Compensation Act 1988 s 24

Guide to the Assessment of the Degree of Permanent Impairment  Table 9.6

Comcare v Amorebieta (1996) 66 FCR 83

REASONS FOR DECISION

5 April 2006  Mr Egon Fice, Member

Dr P. D. Fricker, Member

1.      Warrant Officer Nelson lodged an application with the Department of Veterans’ Affairs on 20 May 2004 seeking compensation for permanent impairment and non‑economic loss for degenerative cervical spine disease with evidence of disc prolapse and intermittent radiculopathy particularly affecting the left upper limb. On 8 July 2004 the Military Compensation and Rehabilitation Service (MCRS) determined that Warrant Officer Nelson’s impairment had not reached the 10 per cent threshold necessary to attract payment for permanent impairment and non‑economic loss. Warrant Officer Nelson sought re‑consideration of that determination under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). A delegate of the MCRS reconsidered the determination made on 8 July 2004 and affirmed it. Warrant Officer Nelson now seeks review of the decision of the delegate pursuant to s 64 of the SRC Act.

BACKGROUND

2.      Warrant Officer Nelson was born on 7 October 1953.  He enlisted in the Australian Army on 23 March 1983.  He currently holds the rank of Warrant Officer Class 2.

3.      In about October 1998, while undergoing physical training, Warrant Officer Nelson suffered an injury to his neck.  He also reported a sore shoulder following the strain and fall. 

4.      Warrant Officer Nelson was referred to Mr G. Fabinyi, a neurosurgeon, who reported that he was suffering from cervical brachial neuralgia with possible irritation to the left C7 nerve root.  At that time, Mr Fabinyi said that he did not expect Warrant Officer Nelson to have had a disc prolapse as he had regained most of the normal mobility of his neck.  He also noted that Warrant Officer Nelson’s work, as a communications instructor, probably pre‑disposed him to future problems.  He recommended that Warrant Officer Nelson avoid impact exercises such as jumping, tumbling or running for at least one month.

5.      It appears that Warrant Officer Nelson then suffered an aggravation of his injury.  A medical classification review record dated August 2003 noted that Warrant Officer Nelson was suffering cervical degeneration and nerve root irritation.  A MRI scan report of his cervical spine dated 3 November 2003 stated that he suffered mild C3-C4 to C6-7 degenerative disc disease and mild C6‑7 left posterolateral disc herniation with suspected left C7 nerve root impingement.

6.      Mr Fabinyi examined Warrant Officer Nelson again on 17 November 2003, noting that a few weeks previously, after vigorous exercise, Warrant Officer Nelson observed some sensory change affecting the left arm with tingling in the fingers.  This lasted for several days and was not accompanied by significant pain.  An examination of Warrant Officer Nelson revealed that he had a full range of neck movement.  Mr Fabinyi thought it would be in Warrant Officer Nelson’s best interests if he were not to participate in further active physical duties.  He was concerned that if Warrant Officer Nelson were to participate in completing vigorous obstacle courses, do a lot of running or carrying heavy packs, his condition was likely to flare up.  Warrant Officer Nelson lodged a claim for compensation on 25 March 2004.  On 29 April 2004 the MCRS determined that Warrant Officer Nelson suffered an injury arising out of his military service namely, degenerative cervical spine disease with evidence of disc prolapse and intermittent radiculopathy particularly affecting the left upper limb.

7.      On 20 May 2004 Warrant Officer Nelson lodged a compensation claim for permanent impairment arising out of his accepted injury. 

CONSIDERATIONS

8.      The essential issue in this matter is whether Warrant Officer Nelson has suffered a loss of half of the normal range of movement in his cervical spine.  If he has, then under Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment (the approved Guide), his level of impairment must be assessed at 10 per cent. That of course is the threshold for qualifying for compensation for permanent impairment under s 24 of the SRC Act. If Warrant Officer Nelson’s degree of permanent impairment is less than 10 per cent under Table 9.6, compensation is not payable to him under s 24 of the SRC Act (s 24(7)(b)). Compensation for non‑economic loss can only result where an injury to an employee is classified as a permanent impairment and compensation is payable in respect of the injury under s 24 (s 27(1)).

9.      Warrant Officer Nelson was examined by Dr Mutton on 20 April 2004 and he set out his findings in a report dated 26 April 2004.  Dr Mutton subsequently provided an amendment to his report in an undated letter addressed to the Department of Veterans’ Affairs.  He was also examined by Mr R. A. McArthur, an orthopaedic consultant, on 5 August 2004 and the results of that examination were provided in a report dated 18 August 2004.  Mr McArthur examined Warrant Officer Nelson again on 30 September 2005 and he provided the results of that examination in a letter dated 6 October 2005.  Dr M. Shannon, an orthopaedic surgeon, examined Warrant Officer Nelson on 2 November 2005 and set out his findings in a letter dated 7 November 2005.  Warrant Officer Nelson was examined to determine his range of neck movement so that an assessment could be made under Table 9.6 of the approved Guide regarding the percentage whole person impairment suffered.  The table below sets out the range of movement assessed by each of the practitioners who examined him. 

MR McARTHUR		DR MUTTON	DR SHANNON	NORMAL RANGE
18 Aug 2004	30 Sep 2005
FLEXION	20°	15°	40°	45°	45°
EXTENSION	10°	30°	40°	30°	45°
RIGHT LATERAL FLEXION	15°	‑	45°	45°	45°
LEFT LATERAL FLEXION	10°	‑	25°	30°	45°
RIGHT ROTATION	40°	25°	80°	70°	60‑80°
LEFT ROTATION	25°	25°	60°	60°	60‑80°

10.     It is obvious that the range of neck movement found by Mr McArthur varies considerably from that measured by Drs Mutton and Shannon.  All of the medical experts agreed that persons with injuries of the kind suffered by Warrant Officer Nelson can have a degree of variation in the extent of movement that they are able to perform with their neck.  The stiffness and the pain can vary and such persons can have good days and bad days.  Warrant Officer Nelson said that on the days he was examined by both Drs Mutton and McArthur, he was having a good day.  That may be part of the explanation for the wide variance between the medical experts, but it is not the entire explanation. 

11.     Putting to one side for the moment that Mr McArthur was of the view that the normal range for left and right rotation was 60° rather than 80°, the large variation in the results achieved by Mr McArthur on the one hand and Drs Mutton and Shannon on the other hand is most likely explained by the methodology used by those medical experts when measuring the degree of movement Warrant Officer Nelson has in his neck.  Mr McArthur and Dr Mutton used a goniometer in order to measure the maximum deflection from normal, Dr Shannon did not.  Nevertheless, his measurements are fairly close to those of Dr Mutton’s.  The significant difference appears to be that, according to Mr McArthur, “you check the range of movement up to the point of discomfort, you don’t push it any further than that.”  Dr Mutton, on the other hand, said that he encouraged people to perform their range of movement but he did not ask them to stop at the first point of discomfort.  Dr Mutton said that he would see that the movement was performed actively by the patient and he would encourage the patient to go as far as he or she could.  He said he would not push people beyond their painful limit because he was not aware of where that limit might be.  In other words, Dr Mutton relied on the patient to assess the degree of movement that he or she could make dependent upon the level of pain that they could put up with when performing a rotation or flexion.  Dr Shannon used a similar technique and, although he did not use a goniometer to measure the degree of flexion and rotation available to Warrant Officer Nelson, he said that generally he would ask a patient to move his or her neck as far as they can.  Warrant Officer Nelson, in his oral evidence, confirmed the different technique used by Mr McArthur except that he suggested that Mr McArthur had measured two ranges; the first from the normal position to when he started to experience pain; and the second range up to the point where it was too painful to move further.  However, that is not what Mr McArthur said he did.  He took only one set of readings on each examination and, given the large difference between the ranges of movement recorded by him and the other two medical experts, it is reasonable to conclude that Mr McArthur only recorded the range of movement up to the point of discomfort. 

12.     The reason for Mr McArthur stating that the normal range of rotation to the left and right is 60° rather than 80° was because he relied on figures provided by the American Orthopaedic Association rather than the American Medical Association.  Apparently, the fifth edition of the American Medical Association Guide (AMA Guide) states a normal rotation is 80° rather than 60°, and he referred to the former.  The normal range for flexion and extension may have also increased to 50° and 60° respectively. 

13.     It is reasonably clear that Drs Mutton and Shannon found that Warrant Officer Nelson’s loss of normal range of movement was less than 50 per cent.  This is despite the fact that Dr Mutton, in his first report, assessed Warrant Officer Nelson as suffering from 10 per cent impairment.  It is clear from his subsequent correction and his oral evidence that he simply misread Table 9.6.  He used the description under the column dealing with the thoraco‑lumbar spine which rates a person as having a 10 per cent impairment where there is a loss of less than half the normal range of movement, rather than the description under the cervical spine column which gives a person a rating of 10 per cent only in the event of a loss of half normal range of movement.  It is quite clear in Dr Mutton’s first report that he found that Warrant Officer Nelson’s loss of range of movement was less than half of the normal range. 

14.     The expression “normal range of movement” was considered by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 at p98 where his Honour said:

…If the expression "normal range of movement" were to be given the meaning it has in ordinary speech where it occurs in Table 9.6, the determination of that meaning would be a question of fact. But the question whether the expression is used in Table 9.6 in a sense other than that which it has in ordinary speech is a question of law. (See NSW Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 511-512; Hope v Bathurst City Council (1980) 144 CLR 1.) In my opinion the expression is used in Table 9.6 in the sense in which it is understood by medical practitioners when used in reference to the human musculo-skeletal system…

15.     Mr De Marchi, the solicitor representing Warrant Officer Nelson, submitted that the difference in the medical opinions was due to the methodology used by the various doctors who examined Warrant Officer Nelson.  Mr De Marchi submitted that despite all doctors mentioning the AMA guide, none indicated that they had adopted the measurement protocol recommended in either the second or the fifth edition of the AMA guide.  Under the second edition of the AMA guide, flexion and extension are required to be measured by a goniometer.  Rotation does not require the use of a goniometer as the arc of rotation is estimated.  However, the fifth edition of the AMA guide requires the use of two inclinometers and it provides tables for measurements.  Mr De Marchi submitted that the use of different techniques in measuring flexion and rotation would result in widely disparate results.  He submitted that an independent examiner should be appointed by the Tribunal to carry out the appropriate testing of the limitation of movement.

16.     However, as counsel for the respondent submitted, all of the specialists who gave evidence said that their reliance upon the AMA guide was only for the purpose of identifying the normal range of movement of the cervical spine.  Further, Table 9.6 of the approved Guide does not mandate the methodology for measuring movement set out in the AMA guides.  Table 9.6 simply requires the medical specialists to assess the loss of normal range of movement.  Counsel for the respondent submitted that each of the specialists who gave evidence at the hearing did just that.  We agree with that submission.

CONCLUSIONS

17.     Although there is a wide disparity between Mr McArthur’s assessment on the one hand and Drs Mutton and Shannon on the other, regarding Warrant Officer Nelson’s loss of movement in his cervical spine, the explanation for that disparity is that Mr McArthur measured the range of Warrant Officer Nelson’s neck movement only between the normal position and the point at which Warrant Officer Nelson felt discomfort.  In our opinion, that does not accurately measure the loss of the normal range of movement.  In our opinion, the loss of range of movement is properly assessed by determining the point between the normal position and the point at which the patient can no longer flex or rotate the cervical spine due to pain.  That is the range that Dr Mutton and Dr Shannon measured.  Both of those medical experts determined that Warrant Officer Nelson’s loss of range of movement was minor, which equates to 5 per cent under Table 9.6 of the approved Guide.  This finding is also supported by Dr Fabinyi who said, in his letter of 17 November 2003, that upon examination, Warrant Officer Nelson had a full range of neck movement. 

18. Finally, Mr De Marchi suggested that it was appropriate that medical practitioners use the methodology for measuring cervical spine flexion and extension set out in either the fifth or sixth edition of the AMA guide. However, there is no such requirement under the SRC Act. Section 24(5) simply provides that Comcare is required to determine the degree of permanent impairment of an employee resulting from an injury under the provisions of the approved guide. Section 28(1) of the SRC Act explains that the approved guide is the Guide to the Assessment of the Degree of Permanent Impairment published by Comcare.  The approved Guide for the purposes of this matter is the guide prepared and authorised by Comcare in 1989, the second edition (2005) only becoming effective in respect of applications made from 1 March 2006.  There is nothing in the guide which even suggests that the methodology to be adopted should be that set out in any AMA guide. 

19.     Accordingly, in our opinion the reviewable decision made by the MCRS on 10 December 2004 should be affirmed.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Hearing:  24 January 2006

Date of Decision:  5 April 2006
Counsel for the applicant:         Mr D. De Marchi
Solicitor for the applicant:          De Marchi & Associates
Counsel for the respondent:      Mr B. DuBe

Solicitor for respondent:            Australian Government Solicitor