Novica Vujacic and Comcare

[2014] AATA 63

[2014] AATA 63

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3738
Re	Novica Vujacic
APPLICANT
And	Comcare
RESPONDENT

Decision

Tribunal	Senior Member J Toohey Dr Alexander, Member
Date	10 February 2014
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J Toohey

CATCHWORDS – COMPENSATION – lumbar spine – accepted injuries – whether applicant has permanent impairment resulting from injuries – degree of permanent impairment – assessment of degree – whether applicant has radiculopathy – decision under review affirmed    

Legislation

Safety Rehabilitation and Compensation Act 1988 ss 14, 24(5), 24(7), 28(4)

Cases

Comcare v Broadhurst [2011] FCAFC 39

Secondary Materials

Comcare, Guide to the Assessment of Permanent Impairment Edition 2.1

American Medical Association, Guides to the Evaluation of Permanent Impairment 5^th edition 2001

REASONS FOR DECISION

Senior Member J Toohey
Dr Alexander, Member

Background

1. Mr Novica Vujacic is aged 73.  He was employed as an electrician by the Department of Defence from October 1980 until November 1996. 

2. In March 1982, Mr Vujacic was working on a ladder when one of its legs slipped and he fell from approximately one and a half metres to the floor on to his bottom.  He was off work for about three weeks after which he resumed normal duties.

3. In September 1992, Mr Vujacic strained his back at work while pulling a heavy metal cable.  He continued working for a couple of days but, when the pain did not settle, he went off work for about two weeks after which he resumed normal duties.  In 1995, he slipped while coming down some steps at work and injured his left knee.

4. The respondent accepted liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for each of Mr Vujacic’s injuries.

5. Mr Vujacic complains of constant aching in his lower back.  In May 2012, he claimed compensation for permanent impairment as a result of the accepted injuries to his lumbar spine.  It is common ground that he has severe degenerative disc disease in his lower back.  It is now conceded that the injury in 1992 has played no significant part in his condition. 

6. The respondent denies liability to compensate Mr Vujacic.

Legislation

1. Comcare is liable to compensate an employee who suffers an injury that results in death, incapacity for work, or impairment: s 14.

2. The degree of an employee’s permanent impairment is to be determined under the provisions of the approved Guide to the Assessment of Permanent Impairment (the Guide) in force at the relevant time: s 24(5) and 28(4). 

3. Subject to an exception that is not relevant here, compensation is not payable to an employee whose degree of permanent impairment is less than 10 per cent: s 24(7).

The issues

1. The issues in these proceedings are:

   (a)whether Mr Vujacic has a permanent impairment of his lumbar spine;

   (b)if so, whether his permanent impairment is the result of his accepted injuries;

   (c)if so, whether the degree of his permanent impairment is at least ten per cent and so compensable under the Act.

Has Mr Vujacic a permanent impairment and, if so, is it the result of his accepted injuries?

1. Mr Vujacic has provided a written statement and gave oral evidence.  Not surprisingly, his recollection of events up to 30 years ago is not especially good.  Dr Neil McGill, who saw him for assessment on three occasions, described him as a “poor historian” but there is no suggestion that he has been anything other than truthful.

2. In addition to the degenerative disc disease in his lower back, Mr Vujacic suffers from a number of other medical conditions.  He has a 30 per cent whole person impairment on account of his accepted knee injury.  In 2005, he had a total left knee replacement and in 2012 a total right knee replacement.  He has had psoriatic arthritis since around 2000 for which he receives regular injections, he is morbidly obese, and he has diabetes and chronic asthma.  He fractured his left ankle in 1978, injured it again in 1992 and underwent left ankle arthrodesis in 1995.

3. Dr McGill is a rheumatologist.  He saw Mr Vujacic for assessment in October 1995, May 1999 and July 2013.  Dr John Harrison, orthopaedic surgeon, saw him for assessment in September 2011 and July 2013.  Both have provided written reports and gave oral evidence. 

4. We also have before us reports from Dr David Maxwell, orthopaedic and spinal surgeon, who saw Mr Vujacic for assessment in January 2013.  Also in evidence are the “T-documents” which include medical reports and other documents dating from 1992.

5. Dr McGill gave evidence that it is possible, but not probable, that Mr Vujacic suffered “a small permanent injury” to his lower back as a result of the fall in 1982 that has contributed to his degenerative disc disease.  In reaching this conclusion, he took into account that Mr Vujacic had only a short period off work after each injury; and his general practitioner, Dr Malek, noted in 1992 that Mr Vujacic had lower back pain “on and off” since he had been seeing him since 1988, and his treating rheumatologist, Dr Harry Patapaniam, noted in 1993 that he suffered only “intermittent episodes of low back pain”.  However, Dr McGill said, even if he had some small permanent impairment, the fall in 1982 was only one of a number of contributing factors which include Mr Vujacic’s age, obesity and psoriatic arthritis, and it would not have substantially altered the progress of degeneration in his lumbar spine. 

6. In Dr McGill’s view, Mr Vujacic’s current functional impairment would be the same regardless of the injury in 1982.  He does not believe the nature of the 1992 injury, which occurred while pulling a heavy weight as opposed to falling from a height, had any long-term effect. 

7. Dr Harrison’s evidence was not entirely clear but we understand him to say that, based on the history given to him by Mr Vujacic, and radiological scans in 1992, that he continues to suffer the effects on his lumbar spine of the incidents in 1982 and 1992.  However, Dr Harrison did not clearly point to evidence to support his conclusion.  Moreover, Mr Vujacic himself does not claim to have suffered ongoing effects of the 1992 incident.

8. We prefer Dr McGill’s evidence to that of Dr Harrison.  Dr McGill was able clearly to explain the contribution of the 1982 fall relative to other factors, in particular Mr Vujacic’s psoriatic arthritis, obesity and age, to the degeneration of his lumbar spine.  We accept his evidence that any effect of the injury in 1982 has been overtaken by other contributing factors.  We are not satisfied that Mr Vujacic has a permanent impairment as a result of that injury.

9. Even if we are wrong, and Mr Vujacic has sustained a permanent impairment, his claim cannot succeed because we would find that the degree of permanent impairment is less than 10 per cent.

What is the degree of any employment-related permanent impairment?

1. The Guide includes general principles of assessment and instructions on the application of individual Tables to which assessors must have regard.

2. The relevant Table in this case is 9.17: Lumbar spine – diagnosis-related estimates. 

   Table 9.17 Lumbar Spine

% WPI

Criteria

0

No significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness

or

No fractures.

8

Clinical history and examination findings compatible with a specific injury. Findings may include: significant muscle guarding or spasm; asymmetric loss of range of motion; or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings.  No alteration of the structural integrity and no significant radiculopathy

or

Prior clinically significant radiculopathy and radiologically demonstrated disc herniation, consistent with the radiculopathy, but radiculopathy no longer present following conservative treatment

or

Fractures:

·   Compression fracture of one vertebral body of less than 25%

· Posterior element fracture without dislocation (not developmental spondylosis) that has healed without alteration of motion segment integrity

· Spinous or transverse process fracture with displacement without a vertebral body fracture, with no disruption of the spinal canal

10 - 13

Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, alteration of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location (may be verified by electrodiagnostic findings)

or

History of a herniated disc at the level and on the side consistent with objective clinical findings, associated with radiculopathy, or employees who have had surgery for radiculopathy but are now asymptomatic

or

Fractures:

· Compression fracture of one vertebral body of 25% to 50%—healed without alteration of structural integrity

· Posterior element fracture with displacement disrupting the spinal canal —healed without alteration of structural integrity.

1. Dr McGill gave evidence that, leaving aside the question of causation, Mr Vujacic has a Whole Person Impairment (WPI) of 8 per cent on Table 9.17.  Dr Harrison assessed his impairment as 10 per cent on the same Table.  Their principal point of difference concerns whether Mr Vujacic has significant signs of radiculopathy.  For the following reasons we prefer Dr McGill’s evidence to that of Dr Harrison.

2. The instructions accompanying Table 9.17 describe radiculopathy as follows:

   Radiculopathy is significant alteration in the function of a nerve root or nerve roots, and is usually caused by pressure on one or several nerve roots.  The diagnosis requires a dermatomal distribution of pain, numbness, and/or paraesthesia.  A root tension sign is usually positive.  A diagnosis of herniated disc must be substantiated by an appropriate finding on an imaging study.  The presence of findings on an imaging study is insufficient to make the diagnosis of radiculopathy.  There must also be clinical evidence as described above.

   Reflexes may be normal, increased, reduced, or absent.  For reflex abnormalities to be considered valid, the involved and normal limb(s) should show marked asymmetry between arms or legs on repeated testing.  …

   …

   Weakness and loss of sensation – to be valid, the sensory findings must be in a strict anatomical distribution (that is, follow dermatomal patterns).  Motor findings should also be consistent with the affected nerve structure(s).  Significant, long-standing weakness is usually accompanied by atrophy.

Dr McGill’s evidence

1. Dr McGill gave evidence that, based on Mr Vujacic’s history, radiological scans and his clinical examination, he found no signs of radiculopathy.  He thought there was “a question” as to whether he had had radiculopathy in the past but, if so, it was no longer present when he examined him.

2. With reference to the signs of radiculopathy described in Table 9.17, Dr McGill said Mr Vujacic did not report, or demonstrate, a loss of sensation or power fitting with a nerve root distribution. 

3. Dr McGill found Mr Vujacic had bilateral loss of ankle reflexes rather than the asymmetrical changes associated with radiculopathy.  For this reason he thought it unlikely to be related to Mr Vujacic’s back and more likely related to his diabetes or one of the other causes associated with bilateral alteration or loss of reflexes.  He pointed out that the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5^th edition 2001 (the AMA Guides) on which the Comcare Guide is based, specifically directs practitioners not to be misled by symmetrical reflex changes.  

4. Dr McGill noted some difference in Mr Vujacic’s calf measurements and said this can indicate loss of muscle strength but there are other common causes including venous insufficiency, from which Mr Vujacic suffers.  In these circumstances, he said, any difference in measurement did not tell him much about muscle loss.

Dr Maxwell’s reports

1. On 15 January 2013, Dr Maxwell reported that, in his opinion, the impairment of Mr Vujacic’s lumbar spine became permanent in about 1997 but not as a result of the work-related incidents, the effects of which he thought ceased by December 1995.  He thought Mr Vujacic’s current symptoms were due to “the constitutional condition of spinal canal stenosis”. 

2. Dr Maxwell reported that Mr Vujacic has “some radicular symptoms” but there were “no clear abnormal radicular signs and he does have a symmetrical range of movement”.

Dr Harrison’s evidence

1. In contrast to Dr McGill’s evidence, Dr Harrison’s was unclear and equivocal.  Although he reported in September 2011 that Mr Vujacic “certainly has radiculopathy”, giving oral evidence he said he could not be certain. 

2. Dr Harrison gave evidence that Mr Vujacic manifested “some features of radicular pain”.  He agreed that he did not record a “dermatomal distribution” as required by Table 9.17 but said Mr Vujacic had “a vague L5/S1 dermatomal pattern”.   He agreed that signs of radiculopathy were not “strongly supported” by his clinical findings.  He would not be drawn on whether he found “significant” signs of radiculopathy, only that he found “some”.  He agreed he found no “clear signs” of radiculopathy but said he relied on his clinical judgment for his conclusion.  He agreed that he was aware of, but did not take into account, any effect on Mr Vujacic’s lumbar spine of his long-standing psoriatic arthritis. 

3. When he was first asked to assess Mr Vujacic’s degree of permanent impairment, Dr Harrison assessed him as 8 per cent on Table 9.17 in the second edition of the Guide (significant signs of radiculopathy previously but no longer present), and not 13 per cent which was the next higher available rating (significant signs of radiculopathy required).   

4. Following the decision in Comcare v Broadhurst [2011] FCAFC 39, Dr Harrison was asked for a further assessment using edition 2.1 of the Guide, and he assessed a 10 per cent degree, the criteria for which are in terms identical to 13 per cent in the earlier edition. Dr Harrison could not explain the basis for his revised assessment other than to say he used his clinical judgment.

Consideration

1. We accept that Mr Vujacic has a permanent impairment of his lumbar spine.  We are not satisfied that his employment contributed materially to his permanent impairment.  

2. We prefer Dr McGill’s opinion that Mr Vujacic does not have radiculopathy to Dr Harrison’s opinion, which we found unclear and largely unrelated to the criteria in Table 9.17.  Dr McGill explained clearly why he did not find significant signs of radiculopathy by reference to the detailed description of radiculopathy in the AMA Guides.  His opinion was supported by Dr Maxwell. 

3. Leaving aside the question of causation, we find that Mr Vujacic has an 8 per cent permanent impairment of his lumbar spine.  As that is less than 10 per cent, it is not compensable.  It follows that, even if we were satisfied that Mr Vujacic’s permanent impairment was the result of his injury in 1982, his claim must fail. 

Conclusion

1. We affirm the decision under review.

38.       I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr Alexander, Member. 

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Associate

Dated 10 February 2014

Date(s) of hearing	5 February 2014
Counsel for the Applicant	Mr J Mrsic
Solicitors for the Applicant	T D Kelly & Co Solicitors
Advocate for the Respondent	Ms R Henderson
Solicitors for the Applicant	Sparke Helmore