Paul Good and Military Rehabilitation and Compensation Commission
[2012] AATA 653
•27 September 2012
[2012] AATA 653
Division VETERANS' APPEALS DIVISION File Number
2011/2659
Re
Paul Good
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 27 September 2012 Place Perth The decision under review is varied by altering the description of the compensable injury to "episode of mechanical back pain", the date of injury being 15 October 1971, but that decision is, in all other respects, affirmed.
................[sgd]..................................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – member of Defence Force – applicant suffered back injury in 1971 in course of military service – applicant claimed compensation in March 2010 – in September 2010 respondent accepted liability to pay compensation for injury – in February 2011 respondent denied liability to pay compensation for incapacity for work – applicant is totally incapacitated for work – no medical evidence that applicant's incapacity for work results from 1971 injury – medical evidence that applicant's incapacity for work does not result from 1971 injury – respondent not liable to pay compensation to applicant for incapacity for work in respect of 1971 injury – decision under review varied by changing description of 1971 injury but otherwise affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth), s 5(1), s 27(1), s 29, s 45 and s 46
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 19 and s 124
CASES
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Deputy President S D Hotop
27 September 2012
Introduction
On 3 March 2010 Paul Good (“the applicant”) lodged with the Department of Veterans’ Affairs a completed Claim for Rehabilitation and Compensation form signed by him and dated 19 February 2010, whereby he claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for, inter alia, a lower back injury which he claimed that he sustained in October 1971 in the course of his service with the Australian Army.
On 28 September 2010 a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) made a determination that the respondent was liable under the SRC Act to pay compensation to the applicant for an injury described as “Disc Degeneration (Lumbar Spondylosis) With Anterolisthesis & Bilateral Pars Defects”, the date of that injury being 1 November 1971.
On 23 February 2011, however, another delegate of the respondent made a determination that the respondent was not liable to pay to the applicant compensation for incapacity for work in relation to the abovementioned injury.
On 10 May 2011, following a request by the applicant for a reconsideration of the determination of 23 February 2011, another delegate of the respondent made a reviewable decision under s 62 of the SRC Act affirming that determination.
The applicant has applied to the Tribunal for review of the reviewable decision of 10 May 2011.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T29, pp 1–72) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Supplementary Documents (S1–S58) tendered by the respondent (Exhibit R1);
·Exhibits A1–A3 tendered by the applicant;
·Exhibits R2–R4 tendered by the respondent; and
·the oral evidence of the applicant, Dr Euan Thompson, and Dr Philip Hardcastle.
The Applicant’s Evidence
In his examination-in-chief the applicant gave evidence as follows:
·he is 62 years of age;
·he volunteered for National Service and enlisted in the Australian Army on 29 September 1971 when he was 21 years of age;
·prior to enlistment he was in “excellent” health and physically active, playing rugby and performing judo;
·prior to enlistment he was employed in Dampier as a mechanic on cars and buses and, in the course of that employment, he carried and lifted heavy weights;
·he had no back problems prior to enlistment and, in his enlistment medical examination in August 1971, his spine was found to be normal;
·he had previously applied to join the Army about two years before but he was unsuccessful on that occasion, probably for academic, rather than physical, reasons;
·during an exercise in mid-October 1971 he was paired with “the biggest bloke in the squad” and he had to carry him up a hill, as well as two packs and two rifles on his shoulders, and while he was going up the hill he felt pain in his back and “virtually dropped” the man he was carrying, and he reported to the RAP (Regimental Aid Post) for his back and he was sent for an x-ray;
·at the RAP he was given “a couple of aspros and a bottle of liniment”, and he was “put on restricted duties”;
·he cannot remember how long he was on restricted duties but it was usually 3–5 days;
·he was offered a medical discharge or a transfer, and he took a transfer;
·he left the Army in March 1973 and went back to his old job as a mechanic in Dampier;
·that job required heavy lifting which he “could not handle very well” because of his back, and he used to get a fellow worker to do the heavy lifting;
·he also had problems with bending and had “numbness down the leg”;
·he worked as a mechanic for only 3–4 months and he then went into driving trucks;
·he drove trucks for 10–15 years and that did not involve heavy lifting;
·he was then “unemployed for a couple of years”;
·he then became a “professional roo shooter” but his “offsider” would pick up the dead kangaroos and put them in the back of the truck; he did this for 1½–2 years;
·the reason he did manual labour was because he had left school in Year 9 and was not suited for office work;
·he was then unemployed for a while before getting a job as a security guard at Edith Cowan University;
·in that job he could work at his own pace and did not have to do any heavy lifting;
·at that time he had a lot of trouble walking around because of “pins and needles” in his leg;
·one night when he was on duty he stumbled down some stairs and was taken to hospital;
·he thought that the problem was his hip;
·he had first experienced pain in his left hip, radiating down into his leg, when he was in the Army, and it had gradually got worse;
·he stopped working and went onto the disability support pension in 2002 because he could not stand for very long and could not walk long distances;
·the incident at the University “was not a great fall – it was just a slip”, and he was taken to the hospital for an x-ray but was not admitted into hospital.
The applicant tendered in evidence his written statement, dated 10 February 2012, as follows:
“ …
While undertaking basic training in the Army in October 1971, I injured my lower back carrying up a hill a fellow soldier as well as two rifles and two packs. I attended hospital and had my back x-rayed, after which I was put on restricted duties. After corps training as a driver I was posted as a driver. Although I continued to suffer with back problems throughout my Army service, my concerns were disregarded and I was not offered any treatment. I believe that comments on my medical records of that time are evidence of the dismissive and uncaring attitude of Army personnel to my genuine complaints. At the time of my discharge I was given mundane kitchen duties which was generally regarded as a punishment duty. When I was asked prior to my discharge whether I had any medical problems, I minimised these as I was keen just to leave the Army as I had been disparaged as a ‘malingerer’.
After leaving the Army, I regularly sought medical treatment for my back. In subsequent employment as a mechanic, truck driver and kangaroo shooter I avoided any heavy lifting and carrying in order not to further strain my back. I worked as a security guard at Edith Cowan University for eight years from 1993; this was an ideal job as I was able to avoid lifting any weights and work at my own pace.
In November 2001 I slipped on stairs at the university and aggravated the injury to my back to the extent that I was no longer able to work. I believe that the worsening of my back condition to the extent that I have been on a Centrelink disability pension since 2002 is as a direct result of the injury to my back during military service. Numerous specialists that I have consulted have supported this conclusion. For this reason, I believe that I am entitled to receive incapacity payments because the principal cause of my current incapacity is attributable to my defence service. I have never previously sought compensation from the Military Rehabilitation and Compensation Commission as I was unaware that I had any entitlement as I had not served operationally.” (Exhibit A1)
In cross-examination the applicant gave evidence as follows:
·he had no back problems prior to his enlistment in the Army in September 1971;
·after injuring his back in October 1971 he had back problems for the remainder of his time in the Army but “not as severe as they are now”;
·after discharging from the Army on 2 March 1973 he went back to work at his old job as a mechanic;
·he commenced work as a security guard at Edith Cowan University in 1993 and the incident when he slipped down the stairs occurred on 30 November 2001;
·he subsequently returned to work on restricted duties and ultimately ceased work in June 2003;
·he was having back problems before the incident on the stairs and probably would have had to stop working even if that incident had not occurred;
·that job was the last job he had before becoming incapacitated for work.
The applicant was referred to his service medical records (Exhibit R1, S1, pp 73–86). He agreed that he had been referred for an x-ray of his lumbar spine on 15 October 1971. He said that at that time he was having “a lot of trouble standing, walking and bending”. He was also referred to a psychologist’s report, dated 19 October 1971, which commented that he (inter alia):
·claimed “to have incurred a back injury some 18 months ago and since his arrival at 2RTB has created a fuss about the restrictions it places on him”;
·“found difficulty obtaining satisfactory employment” before volunteering for National Service;
·was “now malingering with the intention of gaining a discharge”.
He said that he did not accept those comments. He was then referred to medical examination records dated 18 July 1972 (S1, p 80), 11 August 1972 (T3, p 14) and 1 March 1973 (S1, p 85) which indicated that no disability regarding his back had been found. He did not agree that he had no back problems at those times.
The applicant was referred to a report of Dr John Quintner, Consultant Physician in Rheumatology, dated 7 January 2002 (S10), to whom he had been referred by Dr Greg Deleuil in relation to the incident when he slipped on the stairs at Edith Cowan University on 30 November 2001 (“the stairs incident”). He acknowledged that, in that report, Dr Quintner had stated (inter alia) that:
·he had “no previous history of back or leg problems”;
·on examination his lumbar spine was “full in range of movement and pain free”, there was “no tenderness … over the lumbar spinous processes”, and his left hip was “full in range of movement but painful at the extremes of external rotation and flexion”.
The applicant was referred to a report of Mr G Wayne Thomas, Neurosurgeon, dated 25 January 2002 (S13), in relation to the stairs incident, in which the following opinion is expressed:
“ It is quite likely that the pain he experiences in the left buttock and hip and leg has a spinal origin and that the L5 S1 level where he has spondylolisthesis has been rendered symptomatic by the fall.”
He did not accept that it was implicit in that statement that he was not suffering lower back pain prior to that incident.
The applicant was also referred to a report of Dr Peter Silbert, Neurologist, dated 22 April 2002 (S25), in which the following opinion is expressed:
“ Mr Good had a pre-existing L5/S1 spondylolisthesis, which was activated by the fall [at Edith Cowan University on 30 November 2001].”
He said that he previously had a lower back problem and he did not agree that his lower back problem had been activated by that fall.
It was put to the applicant that none of the numerous specialists who had examined him in relation to the stairs incident at Edith Cowan University on 30 November 2001 had referred in their reports to a history of prior back pain. The applicant explained that he did not tell those doctors about his prior back problem dating back to his Army service because he believed that the hip pain which he was suffering after the stairs incident was a separate matter and that his previous back problem was not related to that.
The Medical Evidence
The applicant’s Army service medical records
The T Documents and the Supplementary Documents (Exhibit R1) include the following relevant medical records regarding the applicant’s Army service which contain the following information:
·the applicant’s enlistment medical history and examination record, dated 4 August 1971, states that (inter alia) he had never had any back injury and that his spine was normal (S1, pp 73–74);
·on 15 October 1971 the applicant complained of backache and of “greatly reduced movement in his back” and, on examination, no apparent disability was found and he was referred for an x-ray (S1, p 77);
·an x-ray report, dated 21 October 1971, states as follows:
“ Lumbar spine and sacrum. I think there is a spondylolisthosis (sic) with defects in the pars interarticulares (sic) between L.V.5 and the sacrum. However there is no displacement.
No other bone abnormality seen.
I recommend oblique views to confirm.” (S1, p 75);
·a psychologist’s report, dated 19 October 1971, states as follows:
“ …
Comment
1. Rec GOOD claims to have incurred a back injury some 18 mths ago and since his arrival at 2RTB has created a fuss about the restrictions it places on him. He has a grossly unstable employment background and personality testing revealed obsessive self absorption (sic) and psychosomatic overconcern. After his marriage disintegrated and he found difficulty obtaining satisfactory employment, he volunteered for National Service. However things have not proved to his liking and he is now malingering with the intention of gaining a discharge.
Recommendation
2. Discharge does not seem warranted, however if he continues to be an administrative nuisance further consideration will have to be given in this direction.” (S1, p 78);
·a report of the applicant’s Commanding Officer, dated 21 June 1972, recommends that he be discharged (S1, p 77);
·a medical examination record, dated 18 July 1972, indicates that the applicant’s spine was normal and that there was no apparent disability in respect of his back but that his emotional stability was abnormal and he suffered from an anxiety state which had existed prior to his enlistment (S1, p 80);
·an x-ray report, dated 28 February 1973, refers to “pars interarticularis defects at L5 on either side” but states that no “bony or disc pathology” was noted and that there was “no evidence of any subluxation of L5 on S1” (S1, p 86);
·a Final Medical Board Examination Record, dated 1 March 1973, refers to a “back injury Nov 71” and an x-ray report, dated 28 February 1973, which “shows defects in pars interarticularis L5–S1” but otherwise no apparent disability, and indicates that on clinical examination there was no apparent disability (S1, p 85).
Medical reports regarding the stairs incident of 30 November 2001 at Edith Cowan University
Numerous specialist medical reports regarding the applicant’s condition following the incident of 30 November 2001, when he fell or slipped while descending stairs in the course of his employment as a security guard at Edith Cowan University, are in evidence. Most of those reports are set out below.
Dr John Quintner
A report of Dr Quintner, Consultant Physician in Rheumatology, dated 7 January 2002, addressed to Dr Greg Deleuil, states as follows:
“ Thanks for asking me to see Paul. I have arranged for an MRI of the lumbar spine as his clinical presentation does suggest an L4 radiculopathy. He describes pain extending from his left hip to his knee which is described as intense and numb. It is particularly associated with walking, and as you mentioned, his walking distance has been limited to less than 1 km. The pain in his leg combined with a feeling of weakness and numbness makes him stop for some minutes before he can walk on. He does describe pain occurring when he is sitting and also on occasions in bed at night.
I note the history of a fall at work on 30 November 2001. Mr Good was descending stairs when he slipped and fell backward. He injured his right elbow but was able to get up quickly. He immediately noted the pain in his left hip and leg. He was off work for two weeks and then returned to light duties for a week. He couldn’t cope with the duties because of ongoing pain and has not worked since then.
He has not found physical treatment of any benefit and has not responded to the NSAID Brufen. His current health is excellent. He has had no previous history of back or leg problems. I note that he works as a Security Officer for the Joondalup Campus of Edith Cowan University. His job does involve a lot of walking.
On examination the only abnormal finding was a limited straight leg raise on the left, particularly when this manoeuvre was combined with ankle dorsiflexion and medial hip rotation. His lumbar spine was full in range of movement and pain free. There was no tenderness noted over the lumbar spinous processes. His left hip was full in range of movement but painful at the extremes of external rotation and flexion. I could not fault his right hip, knees, ankles or feet. There was no evidence of neurological deficit in the left leg.
A recent x-ray of his left hip showed normality. A radio-nucleide bone scan was non-contributory to the diagnosis.
Paul’s presentation is that of a lumbar spinal foraminal stenosis with an onset of symptoms precipitated by the accident at work.
…” (S10)
Mr G Wayne Thomas
A report of Mr Thomas, Neurosurgeon, dated 25 January 2002, addressed to Dr Deleuil, states as follows:
“ Thank you for asking me to see Paul whom I saw today.
History:
On the 30th November 2001 Mr Good fell down stairs at Edith Cowan University. It happened because he trod on a stick that was on the steps. He couldn’t be too clear as to exactly how he landed or whether he in fact fell to the ground or not. He does know that he struck the right forearm against the bannister or some other part of the staircase as he fell. He was straight away aware of a pain in the left leg radiating to the hip to the buttock and posterior thigh as far as the knee and has noticed some odd sensations in that area which he describes as numbness and a feeling as though his leg doesn’t belong to him. He has only a very small amount of back pain at times most of the pain being in the left leg. The left leg pain has been a very significant problem and it comes on very regularly during the course of a day. It can happen if he is walking along or sitting down or even lying in bed and although not present all of the time will tend to occur rather suddenly during movement and last for about 10 minutes or more. He is not taking any analgesics because of the intermittent nature of the pain. There are no paraesthesiae further down the leg beyond the knee or in the foot for example. He has had no previous lower back problems.
Examination:
On examining him today he was very overweight. Straight leg raising could be carried to 90° bilaterally and neurologically the findings were normal in the lower limbs. He was not tender to pressure over the lumbar spine and he demonstrated a fairly good range of lumbar spinal movement.
Investigations:
The MRI scan confirmed spondylolisthesis at L5S1 with pars defects and some definite narrowing of the left L5S1 intervertebral foramen.
Conclusion:
It is quite likely that the pain that he experiences in the left buttock and hip and leg has a spinal origin and that the L5S1 level where he has spondylolisthesis has been rendered symptomatic by his fall. It is quite possible that there is irritation or compression of the left L5 nerve root although the distribution of symptoms in the left lower limb is not entirely in keeping with this as I would normally expect there to be paraesthesiae below the knee into the foot for example.
…” (S13)
Dr Brian Dare
A report (undated) of Dr Dare, Specialist in Occupational Medicine, addressed to Riskcover, relevantly states as follows:
“ Thank you for asking me to review Mr Good whom I examined on 7 February 2002 in relation to his ongoing left hip and thigh pain. …
Mr Good left school at age 14, initially working as a motor mechanic before serving two years of national service and over a ten year period, worked as a truck and bus driver and also as a roo shooter for two years before joining ECU as a security officer seven years ago. He has presently worked at Joondalup campus for the last four years.
On 30 November 2001, Mr Good describes that while walking down some stairs at work, at approximately 11 pm, while securing a building on campus, he lost his footing, causing him to slip. He fell backwards hitting his upper right forearm and describes ‘bouncing back upright’ and does not describe any specific impact or blow to his lower back or hip. He felt it happened very quickly and as he stated he wasn’t ‘spread eagled’ on his back on the steps after slipping. He immediately noticed significant pain in his left hip and upper thigh and because of this, was taken by his partner, immediately to the Joondalup Hospital.
An xray was performed of his pelvis and left hip, which showed no abnormality specifically, no fractures, and a diagnosis of muscular strain was made and he was treated with anti-inflammatory medication and analgesics. He consulted his General Practitioner the next day who again treated him with anti-inflammatory medication in the form of Brufen and analgesics and considered he had most likely suffered a muscular or ligament strain involving his left hip. After a week, he was referred to physiotherapy where he received interferential, ultrasound and traction of his left hip and thigh but found no improvement after two weeks attending three times per week. He was referred to Dr Quintner after his General Practitioner had organised a bone scan of his left hip on 03 January 2002.
The bone scan demonstrated no abnormality and Dr Quintner organised an MRI scan of his lumbo-sacral spine on 7 January 2002 as he considered that his hip and leg pain was most likely related to a back injury causing nerve root irritation. The MRI scan demonstrated a pars defect at L5/S1 with a grade I spondylolisthesis at L5/S1. There was also some foraminal narrowing at L5/S1 with mild compression of the L5 nerve root. Because of these changes, a neurosurgical opinion was recommended and Mr Good was referred to Dr Wayne Thomas.
Dr Thomas recommended conservative management and also suggested his left hip and thigh pain may be from his back but the abnormalities on his MRI scan including the spondylolisthesis and the L5 nerve root compression do not concur with his clinical symptoms.
Mr Good, since his injury, has virtually complained of no lower back pain and the pain in his hip and thigh being his most significant symptom. It is made worse by walking and states he can presently only walk 300m and his sitting time is reduced to 15 minutes as was standing. He finds he is (sic) most comfortable position is lying up siting on a couch with his left leg on the lounge.
In the past, Mr Good has been very active, involved in scuba diving, fishing and pistol shooting but stated he has been unable to perform any of these activities since his injury. His sleeping at the moment is unsettled and he is limiting his driving due to his problems with prolonged sitting.
He stated he returned to work two weeks after his initial injury working 5-6 hours per day in an office performing computer duties, but although he stated he was reasonably comfortable in the office, he found walking extremely difficult, going to and from his car and was again declared totally unfit for work from 2 January 2002. He stated he is due to start an exercise and gym programme to improve his muscular strength.
Mr Good is married and lives with his wife and one daughter. He is a non-smoker and non-drinker.
On examination, Mr Good presented in a co-operative manner in no obvious distress. He had a normal gait with no evidence of a limp. During the interview, he was required to stand after about 15 minutes due to discomfort in his hip and leg. Examination of his left hip demonstrated a full range of movement but he specifically complained of pain on internal rotation. Examination of his lumbo-sacral spine revealed a full range of movement with no pain on flexion, extension or lateral rotation or flexion and he had normal power, reflexes and sensation in both lower limbs.
In answer to your specific questions:
1) State the presentation and symptoms of the claimant.
As outlined, Mr Good has ongoing left hip and left thigh pain, which has improved but continues to cause him significant discomfort. There appeared to be no exaggeration of his symptoms and no exaggeration or inconsistencies on physical examination.
2)Your findings on clinical examination including a description of Mr Good’s current condition and diagnosis?
The only abnormality to be found on my examination was pain on internal rotation of his left hip and I am not convinced that his hip and leg pain is related to his lumbar spine pars defect and spondylolisthesis or as a result of any nerve root irritation. I consider his symptoms more likely relate to a muscul-ligamentus (sic) strain or joint injury involving of (sic) his left hip.
3)What specifically is the cause of Mr Good’s condition? Is this condition solely attributable to the incident of 30 November 2001? Is it possible that the original affects (sic) of this incident have now ameliorated and the current symptoms being experienced relate to an underlying degenerative or inherent condition?
I consider Mr Good’s ongoing symptoms are related to the incident, which occurred on 30 November 2001 and are still persisting. As stated, I consider there is still some uncertainty about the exact diagnosis of his ongoing symptoms. I do not consider it is related to his back, and so I do not believe it is related to any specific underlying degenerative or other pre-existing condition such as his pars defect.
…
8) Finally, your short and long term prognosis?
From the description of his original injury and if Mr Good’s symptoms are the result of a musculo-ligamentus strain of his left hip and thigh, I would consider his prognosis to be excellent and would expect him to make a complete recovery. If his symptoms are related to his lower back and his pars defect, his recovery may take longer but again, I would still expect him to make a complete recovery and be able to return to his previous duties.
…” (original emphasis) (S19, pp 112 – 116)
Dr Dare provided a further report, dated 26 June 2002, to Riskcover which states as follows:
“ …
Since I last examined Mr Good, he states there has been no real changes (sic) in his symptoms and he continues to suffer ongoing left sided buttock pain radiating into his groin and also complains of numbness and pain radiating down his left leg. Dr Quintner, Dr Caroll (sic) and also Dr Silbert have also reviewed him in attempting to determine an exact diagnosis of his ongoing disability.
As you are aware, he has significant degeneration at L5/S1 with a grade I anterior spondylolisthesis due to a bilateral L5 pars defect. I note the MRI of his pelvis performed on 23 May 2002 demonstrated no abnormality and specifically, no abnormality in his left hip joint and that his piriformis was normal.
…
On examination, he had some restriction in his range of movement of his lumbo-sacral spine specifically with pain on extension. Straight leg raising was normal in both limbs with left equal to right. On movement of his left hip, he had pain on abduction, extension and flexion but general examination of his lower limbs demonstrated normal reflexes, power and sensation. He was able to squat without any difficulty.
1)A description of Mr Good’s complaints and symptoms and your diagnosis of his current condition.
Mr Good continues to complain of ongoing left-sided lower back pain radiating into his buttocks, his groin and also his left leg. Considering his MRI examination of his left hip, his lumbo-sacral spine and also his pelvis, there is very little evidence of any significant pathology apart from his bilateral lower lumbar pars defect, which is most likely the cause of his mild ongoing lower back discomfort. I do not consider he has any objective evidence of any significant pathology involving his left hip.
2)Was the presentation of complaints and symptoms consistent with your findings at examination?
It has now been seven months since his original injury and Mr Good states there has been very little improvement in his symptoms, which is unusual considering little evidence of any pathology on MRI examination, except for bilateral pars defect. He has obviously had the pars defect his whole adult life and although on physical examination, Mr Good demonstrated no specific exaggeration of symptoms or any specific abnormal illness behaviour it is difficult to explain why he should have such significant ongoing pain and the subjective disability he presently describes.
3)Do you consider Mr Good has now fully recovered from the effects of the injury he sustained on 30 November 2001? If not, please stated (sic) the relationship between his current symptoms and the incident on 30 November 2001.
Overall, I consider that Mr Good has now fully recovered from the effects of his injuries sustained on 30 November 2001 and that his ongoing mild lower back discomfort, which I imagine he would have experienced in the past is relates (sic) to his lower pars defect and minor spondylolisthesis.
…
8)What is his future prognosis in respect to returning to his normal full time duties as a security officer?
From a purely physical point of view, his prognosis should be good and there should be no reason why he should not be back performing his normal full time duties as a security officer. However, obviously, he has demonstrated significant abnormal illness behaviour in that he is continuing to complain of ongoing pain and disability for which there is little objective evidence of. (sic)
…” (S30, pp 140–144)
A report of Dr Dare, dated 26 November 2002, addressed to Riskcover, relevantly states as follows:
“ Thank you for asking me to review Mr Good whom I examined on 25 November 2002 in relation to his ongoing symptoms. …
…
Mr Good stated his symptoms have not improved significantly since his initial injury and his pain is still predominantly in his left buttock/hip region and radiating down his left thigh. He again denies any significant lower back pain. He states he is unable to sit or stand for longer than 15-20 minutes because of his pain and he continues to find walking a problem. Although occasionally he feels as though his pain is reduced, he finds it just recurs when standing or sitting for long periods. He finds when he gets pain, his strength in his left leg is reduced and also he develops numbness in his outer thigh. He is continuing to require 2-6 Panadeine Forte each day and he states his sleeping continues to be poor as he is unable to find a comfortable position. He states he is still tries (sic) to get ‘out and about’. He describes an incident three days ago when he went to the casino and after just sitting on the stools at the casino for an hour, he found that his lower back pain was so severe that he had difficulty even walking back to the car.
He is still attending the pistol club, attending once every eight weeks to maintain his membership. He finds he is now able to complete a shooting match only by sitting down in between shootings. He is still continuing to do his back and stomach exercises and also using an exercise bike at home. He stated he had put on some weight since his injury but had recently reduced his weight back to 114 kg. His physiotherapy and hydrotherapy stopped and he recently underwent a course of chiropractic adjustments for two weeks but stated it has made no difference to his symptoms.
Mr Good is still convinced his symptoms relate to a hip problem and not his lower back, as he has never suffered any significant lower back pain. He is not convinced the pain in his hip and buttocks is referred from his lower back. He is aware that Dr Silbert recommended L5 root sleeve and facet joint injections to delineate his problem further and I note this is also recommended by Dr McCloskey in an attempt to obtain a clearer diagnosis. Mr Good also gave me two reports from his physiotherapy (sic), Dr C Perkin dated 23.08.02 and 17.12.02 where he considers his current symptoms may be related to muscle tension around his left hip and pelvis rather than his back.
On examination, there was a full range of movement of Mr Good’s left hip, although he complained of pain on abduction and on external rotation. On external rotation, he complained of pain in the groin but on abduction, there was more pain in his left buttocks. Again, examination of his lumbo-sacral spine demonstrated a normal range of movement and examination of his lower limbs demonstrated normal straight leg raising, power, sensation and reflexes. Examination demonstrated little change from when I previously examined Mr Good in June 2002.
In answer to your specific questions:
…
2)A description of his complaints and symptoms and your diagnosis of his current condition.
His complaints and symptoms are identical to when I previously examined him in June 2002 in that he continues to suffer ongoing left buttock and hip pain with radiation in to his left upper limb. It is specifically made worse by prolonged sitting, standing, walking or any significant manual handling tasks whereby a load is put on his lower back.
On reviewing his previous scans, his medical reports and the most recent assessments by Dr McCloskey and the Medical Panel as well as his physiotherapist, I still consider the pain is related to his lower back and not related to any hip pathology. Mr Good has minor degenerative disease of his lumbo sacral spine and although this may be responsible for his symptoms, it is difficult to explain with this minor degree of pathology in his back, the present severity of his symptoms.
3)Is his current condition significantly related to the initial accident on 30.11.01 or to his duties as a security officer at Edith Cowan University? If not, please specify the cause of his symptoms.
I do not believe his current condition is significantly related to the accident on 30 November 2001 or to his duties as a security officer at Edith Cowan University. Any injury Mr Good may have suffered on 30 November 2001 would have now resolved completely and although he has minor degenerative disease of his lumbar spine, it is difficult to relate this disease with the present severity of his symptoms.
…” (S38, pp 164–166)
In his final report to Riskcover, dated 21 May 2003, following his examination of the applicant on 19 May 2003, Dr Dare referred to the applicant’s symptom and employment history since his last examination in November 2002 and continued:
“ …
On examination, he again demonstrated a full range of movement in his lumbar spine with no significant pain and examination of his lower limbs demonstrated normal straight leg raising, normal power, sensation and reflexes. He also had a good range of movement of his left hip, although again, had pain specifically in his groin with abduction and external rotation of his hip.
In summary, Mr Good has returned to working full hours at his duties as a Security Officer with no specific restrictions in his duties at the Midland annex. It appears his symptoms have improved compared to when I examined him in November 2002, although he is continuing to suffer pain in his left groin, left buttocks (sic) and also has numbness and discomfort radiating down his left limb. He continues to describe restrictions with his standing, sitting and walking.
In answer to your specific questions:
1)Please provide us with a description of Mr Good’s physical complaints and symptoms and whether he is suffering from a specific condition in respect to the incident on 30.11.01?
I carefully reviewed my previous report in regards to Paul Good and further to my examination today, I still consider there is no ongoing relation between his present symptoms and any injury he may have suffered in November 2001. As I previously stated, I do consider most of his symptoms relate to degenerative disease of his lumbo-sacral spine. However, although he has a normal MRI of his left hip, it is conceivable there may be some degenerative disease of his left hip causing his hip symptoms, which do not appear consistent with symptoms coming from his degenerative lower back.
2)Was the presentation of complaints and symptoms consistent with your findings at examination?
Although I appreciate Mr Good may have ongoing symptoms and signs related to degeneration of his lumbo-sacral spine and possibly degeneration of his left hip, it is difficult to explain the severity of his symptoms and disability, considering the lack of objective findings on clinical examination and xrays.
3)What is Mr Good’s current work capacity? Is he fit to carry out his normal full time Security Officer duties without any restrictions?
I have no reason to change my previous opinion and I consider Mr Good is fit for full time duties as a Security Officer with no restrictions.
4)Based on your findings at examination, does Mr Good have any restrictions in respect to walking, walking up stairs, lifting, standing, sitting or driving a motor vehicle? If so, please specify the cause of the restrictions.
Based on my findings on examination, I do not consider Mr Good has restrictions in regard to walking, walking up stairs, lifting, standing, sitting or driving a motor vehicle.
…” (S41)
Dr Peter Silbert
A report of Dr Silbert, Neurologist, dated 22 April 2002, addressed to Riskcover, states as follows:
“ Thank you for referring Mr Good for a medico-legal assessment. He attended on 22 April 2002 as planned. …
Mr Good is a 51 year old Security Officer, who has been previously well.
On 30 November 2001, he was locking up a building on campus at night. As he went to walk down the stairs, he slipped on a stick, and probably fell onto his buttock, but quickly got back up onto his feet. He had knocked his right forearm, and this was his initial source of pain, but he soon became aware of left buttock pain, radiating to the left hip and left lateral thigh.
The discomfort has persisted, but is predominantly left buttock, and left antero-lateral thigh pain. There is a slight tingle that radiates through the calf, to the middle toes, but the majority of the symptoms (more than 95%) are above the knee.
Non-steroidals and physiotherapy have not provided any benefit. I note that he had an EMG by Dr Carroll. This noted irritability in the upper lumbar paraspinals, but no evidence of motor unit potential changes. Dr Carroll raised the possibility of an upper lumbar radiculopathy.
A lumbar MRI scan demonstrates an L5/S1 spondylolisthesis, with some degenerative changes in the L5/S1 disc. There is probably mild bilateral L5 nerve root compression.
Mr Good is on no regular medications, and is a non-smoker who consumes no alcohol. He is married with three children. There is no significant family history.
Examination revealed an overweight middle aged man (114 kilograms). He weighed 100 kilograms at the onset of his symptoms, but has gained weight through inability to exercise as a result of discomfort.
The significant findings on examination were confined to the lower extremities. Straight leg raising was normal bilaterally (80 degrees). He had pain on left hip extension, but this was localised to the left buttock rather than the left anterior thigh as would usually be seen with a femoral neuropathy. Lower extremity tone, power and reflexes were symmetrical (including the knee jerks), with bilaterally downgoing plantar responses. Sensory examination was normal. There was no tenderness on palpation of the lower lumbar region, or sacroiliac joint. Left hip internal rotation produced discomfort in the left buttock and groin region.
In answer to your specific questions:
1.History and examination:
As above.
2.Diagnosis:
The diagnosis remains uncertain.
The most likely diagnosis is that he has left L5/S1 facetal pain which is referring to the left groin region, and to the left antero-lateral thigh. This would be consistent with the documented spondylolisthesis, and the mechanism of injury. To further assess this, a left L5/S1 facet joint injection may be diagnostic and therapeutic. If there is a discogenic contribution to his pain, then the symptoms may persist, but I would at least expect some improvement from the facet joint injection.
The other possibility on the basis of the EMG is that he may have an upper lumbar radiculopathy/plexopathy/femoral neuropathy, as can be seen in early diabetes. Dr Carroll’s EMG demonstrates paraspinal fibrillations, and this could cause a similar pain syndrome. Against this diagnosis, is that it would imply that the work injury was incidental, (but his symptoms began at the time, therefore I consider this unlikely), and furthermore the distribution of radiating symptoms to the foot is more in keeping with an S1 distribution (which correlates with the L5/S1 segmental dysfunction), rather than being an upper lumbar plexopathy as would be seen with diabetes. Diabetic plexopathies and polyradiculopathies can be seen even with a normal blood sugar level, and may be seen with impaired glucose tolerance. Therefore he should have a glucose tolerance test. A repeat EMG may be required.
Considering the two possibilities (L5/S1 segmental dysfunction or a diabetic polyradiculo-plexopathy), I would consider the L5/S1 segmental problem to be more likely.
3. Work capacity:
Considering Mr Good’s current pain I do not feel he is able to return to his previous work duties as a Security Officer at present. He needs some therapeutic intervention, and for that reason I have recommended an initial L5/S1 facet joint injection.
He would be medically fit to do light duties monitoring a computer lab for 2-3 hours per day, increasing to 5 days per week. I cannot predict at this stage when he will be fit for full time work.
4. Treatment regimes:
The initial step will be to perform a left L5/S1 facet joint injection. Depending on the response to this diagnostic and hopefully therapeutic injection, other procedures may be indicated.
5. Prognosis:
Before ascertaining the prognosis, diagnostic and therapeutic injections are required.
Mr Good had a pre-existing L5/S1 spondylolisthesis, which was activated by the fall. With the above intervention it may be possible to settle his low back pain, and he can then focus on weight reduction, and strengthening his back and abdominal muscles.
…” (S25)
Mr Stewart Brash
A report of Mr Brash, Orthopaedic Surgeon, dated 23 July 2002, addressed to Riskcover, states as follows:
“ I refer to your letter dated 3 July 2002. At your request I saw this 52 year man (sic) on 16 July 2002 for the purpose of preparing a medico-legal report.
Because I was uncertain as to the exact diagnosis I wished to see Mr Paul Good again and thus I saw him again at my request on 23 July 2002.
I understand that this patient commenced working for Edith Cowan University as a full-time Security Officer some 6-7 years ago. His job as a Security Officer involved patrolling and locking up. Prior to November 2001 he had had no previous problems with the back or buttock, no serious accidents and no previous medico-legal claims. His recreational activities included scuba diving, fishing and pistol club shooting.
History
At around 10:00 pm on 30 November 2001 he was locking up a building which was 4 storeys high. Mr Good came down the stair well and slipped on a stick. He states that he fell and bounced back. He probably landed on the buttocks. Her (sic) certainly bumped the right elbow. He got up very quickly and he noticed that he did have left buttock pain radiating down the leg. He hobbled back to the office and from there he went to the Joondalup Medical Centre where x-rays were taken of the left hip.
I have read the First Medical Certificate given on 30 November 2001 at 10:00 am (sic) by the Medical Officer in which the Medical Officer does not come to a specific diagnosis, but noted that Mr Good had pain occurring intermittently on walking/standing, left groin/hip/buttock/greater trochantic area with decreased range of motion on internal rotation of the left hip. No bruising was evident. The left leg was neurologically intact. He then came under the care of Dr Greg Deleuil. Just before Christmas 2000 (sic) he returned to light duties working part-time in the office. He was then off-work until about six weeks ago. About six weeks ago this patient commenced working 2 hours a day, 3 days per week.
Past treatment has consisted of Brufen tablets. He has had two lots of physiotherapy each lasting about 3 weeks. These physiotherapy sessions were of no value. He has had hydrotherapy. He has received no injections.
At the present time he is on hydrotherapy three times a week. He has just commenced attending Mr Keith Bower, Physiotherapist at Lifecare. He noted that Mr Keith Bower, on manoeuvring his hip, perhaps extending the hip, caused a great increase in the symptoms.
At the present time he is on no tablets. He is doing a home exercise program. Since the accident this man has put on 2 stone.
He has a constant dull ache in the left buttock. He states the pain is worse if he walks more than 200-300 metres. The pain is worse if he sits or stands for too long a period of time. To experience relief he changes position.
On a scale of 0 to 10 with 0 being no pain and 10 being the worst pain imaginable the pain varies between 2-6 out of 10 and compared to 6 months ago the symptoms have remained the same. Thus it is important to note this patient’s symptoms have not been helped by the passage of time, stopping work or the treatment to date. One interesting feature about his symptoms is that if he starts to walk he starts to have tingling in the toes, then if he pushes on and continues to walk he has pain and numbness spreading downwards from the low back area.
Examination
Examination showed a man who is overweight. He tells me that he is 5’7” in height and he weighs 114 kg.
In the standing position with the knees straight there was a full range of active motion in the lumbo-sacral spine. He walked without a limp. Trendelenburg’s significant was normal (that is, negative).
There was no tenderness in the lumbo-sacral spine. He was able to perform active bilateral straight leg raising without any difficulty and without any pain. In fact he was able to actively bilateral straight leg raise such that both legs came to 90° from the extended position. Bilateral straight leg raising is a very good test for lumbar segmental instability. The test is normal. There was some subjective tenderness in the middle of the left groin, that is, in the middle of the inguinal ligament. There was also some subjective tenderness in the left buttock.
Conclusion
Basically clinical examination was entirely normal.
…
Discussion and Opinion
History
One would not expect any major injury from the history given to me. That is, he slipped, then was able to get up very quickly. One would not have expected from this history for him to have experienced any pathology which would still be giving him problems now seven months since the accident.
Clinical Findings
Clinical findings do not show any cause for his pain. Basically apart from some subjective tenderness there is no abnormality on examination. By subjective tenderness I mean the tenderness was vague, both with respect to site. (sic) In other words there was no consistent and persistent localised tenderness.
Investigations
These have shown only normal minor age related degenerative changes here. They do not show the cause for pain.
One must therefore say that I am not able to reconcile this patient’s symptoms which have remained the same since the accident with the lack of clinical and radiological findings. As such I believe this patient is completely fit for the full activities of daily living including the full-time work he was doing prior to 30 November 2001. In other words I believe this patient can return to his job as a full-time security officer, involving patrolling and locking up.
Questions
With respect to the questions you pose:
1.This patient’s symptoms are given above. I am not able to come to a diagnosis as to why this patient has continued symptoms. I can see no objective evidence of pathology that I can relate to the accident of 30 November 2001.
…
3.I do believe that Mr Good has fully recovered from the effects of the injury he sustained on 30 November 2001. Again I am not able to see any objective evidence of pathology that I can relate to the events of 30 November 2001 nor which would explain his constant ongoing symptoms which have remained the same since before Christmas 2001. At this point in time I shall say that the self reporting of pain is indeed a very poor measure of disability and/or impairment.
…” (S32, pp 148–151)
Mr Bryant Stokes
A report of Mr Stokes, Neurosurgeon, dated 28 July 2003, addressed to Dr Deleuil, states as follows:
“ Thank you for referring Mr Good who I saw on the 28th of July. I note that he is a 53 year old previous security officer with Edith Cowan University. He stated that he had had no problems with his back apart from some very mild intermittent discomfort which had never bothered him and for which he had never seen a medical practitioner.
He states that on the 30th November 2001 whilst he was in the process of locking up a building he slipped on what was probably a stick and slipped against a stair railing and certainly injured his right forearm and also strained his left buttock. He said he didn’t think he hit the ground but bounced straight up. When he did this he still had pain in his left buttock and he could not recall if his left foot had shot away under him. He had quite significant pain and was taken to Joondalup Hospital and was released after a few hours.
He continued to work but was put off after a couple of days because of persistent pain which is in the left buttock and down the postero-lateral aspect of the left thigh and also down into the sole of the left foot.
He had a MRI scan in 2002 which has shown narrowing at L5/S1 with an early spondylolisthesis and possible root entrapment of the left S1 nerve root.
The pain in the left buttock continues and radiates down the left leg into the sole of the foot as I have stated and has not significantly abated.
He did have an injection into the left hip which did apparently help. In the past he has seen a number of specialists including my neurosurgical colleague, Mr Wayne Thomas, and neurologist Dr Peter Silbert, and has also had an EMG which I understand was negative.
Clinical examination revealed him to be overweight but straight leg raising was mildly reduced on the left and there was significant left buttock tenderness and the left ankle jerk was mildly depressed. He also complained of some tenderness around the left anterior hip.
His symptomatology to me sounds like left S1 nerve root involvement and certainly with the type of injury could well have produced a compression of the S1 nerve root. I think at this stage a repeat EMG is indicated and I have suggested a left S1 root sleeve injection to see if that will relieve his symptoms as a diagnostic as well as therapeutic manoeuvre. However, he is not keen on having the root sleeve injection and so we have arranged the EMG and I will review him after that.
…” (Exhibit R2)
Mr Stokes subsequently provided a report, dated 19 January 2004, to Mr Michael Holt, Orthopaedic Surgeon, in which he stated:
“ …
As you are aware in his long saga of history, there was very good relief for approximately four weeks from an injection in his hip joint, which makes me believe that this is the source of his pathology.
I do not believe there is sufficient activity within his back to warrant further explanation (sic) in that area but would think a repeated injection in the hip joint, if that does take the pain away, will therefore quite clearly indicate to us that that is the source of trouble.
…” (T9)
Mr Michael Holt
A report of Mr Holt, Orthopaedic Surgeon, dated 16 February 2004, addressed to Mr Stokes, states as follows:
“ Thank you very much for asking me to see Mr Good again. I think some of his symptoms may be coming from his hip joint but he is NOT a surgical candidate in my opinion. He walks too well, moves too feely and the objective evidence of arthropathy in the hip is not very convincing in that he has a normal bone scan and has had two MRIs of his hip which don’t show anything major.
I discussed it with Mr Good again and whilst he is desperate to know whether it’s his back or his hip or his hip or his back, I have told him it’s probably a combination of things and I have also indicated to him that surgery is not an option.
Of course he can have another injection and I have suggested he have a think about that and talk it over with his GP.
I didn’t arrange any further reviews as I don’t think I have anything more to offer him.” (S44)
Mr Peter Woodland
A report of Mr Woodland, Orthopaedic Spinal Surgeon, dated 10 November 2003, addressed to Dr Deleuil, states as follows:
“ Thank you very much for your letter with referral of Mr Good now aged 53. I saw Paul in the office today, Monday 10 November 2003 for the purpose of a further opinion concerning his atypical left lumbosacral, buttock, groin and left lower limb symptoms in the context of work incident, November 2001, two years ago.
Diagnoses:
Fall at work 30.11.01;
· Atypical left buttock, groin, left lower limb symptoms
·Grade 1 isthmic L5/S1 spondylolisthesis, L5/S1 disc degenerative change. ? Left L5 radiculopathy.
Health otherwise good.
Non-smoker.
History:
Paul told me of the incident 30 November 2001, almost two years ago. He was working full time as a security guard at the Edith Cowan Campus in Joondalup. He was coming down some steps, he apparently lost his footing, was jolted backwards severely but did not actually land on his buttocks or back. He experienced severe left sided lumbosacral buttock pain then with groin pain and left lower limb symptoms. He did try to return to work on light duties return-to-work programmes but unsuccessfully. He last worked five months ago.
In the context of the workers compensation claim he was seen by several medical practitioners, some of whom felt that Paul did not have any significant disability and the obligation for him was to return to full time employment, which he felt he could not do.
He was assessed by Gerard Taylor who organised left hip local anaesthetic injection, January 2003 and this did give dramatic pain relief for about four weeks then with recurrence. He also was assessed by Peter Silbert, Neurologist and I understand that Peter did feel initially there was relationship to his isthmic spondylolisthesis and diagnostic/therapeutic epidural injection was suggested but Paul declined.
At this time Paul has ongoing symptoms. He avoids medications. Symptoms are definitely activity related. He does not actually have significant central lumbosacral back pain.
He does have referral from the left buttock to the left groin also to the left upper lateral hip and down the left lower limb to the sole of the left foot, the latter with paraesthesia but most likely in the L5 nerve root dermatome distribution.
Examination:
Paul is of heavy build, currently weighing 117 kg, walking independently, slight limp favouring his left side, reasonable standing posture, localised tenderness at the left lumbosacral junction, left buttock. Moderate restriction of movements with fingertips reaching the upper third shins only. I could not fault his lower limb neurology apart from slight reduction of left straight leg raise measurement at 60°. He had a good range of hip and knee movement, good peripheral perfusion.
…
Assessment:
I personally suspect that this man’s symptoms are lumbar back related and the only abnormality seen on the various scans/images relate to the lumbosacral junction where there is isthmic Grade 1, L5/S1 spondylolisthesis with possibility of L5 nerve root impingement. On the other hand symptoms are atypical. Paul does have the option of pursuing the symptoms further and that would include diagnostic tests such as L5 nerve root sleeve injection/localised epidural injection. It is intriguing that he got very good relief from symptoms following the left hip joint injection.
I hope these comments are of assistance. This man does appear to have genuine symptoms and he does have options in regard to further investigations and treatment, but I can say that in my opinion there is no place for any surgical treatment in regard to any lumbar spine condition.
…” (T7)
Dr John Ker
A report of Dr Ker, Consultant Physician in Rehabilitation Medicine, dated 20 August 2004, addressed to the applicant’s (then) solicitors, states as follows:
“ I saw at your request in consultation on 12th July 2004 your client, Mr Paul Good.
Mr Good, who is now 54 years of age, I understand has for a number of years worked on the security staff of the Edith Cowan University – their Joondalup Campus. I believe he took up employment there in and around 1990.
In the past, he has also worked in a variety of other semi-skilled positions both in the bush and in truck driving.
My understanding is that he was in quite satisfactory health up until the time of an incident on 30th November 2001. On that particular occasion, he told me how he was undertaking his normal security work at the Joondalup campus locking doors and securing the building. As he went to descend a flight of steps, I understand that he slipped on those steps and falling, he believes, backwards, landed in part on his bottom.
In attempting to break his fall, he also struck his right forearm.
He was initially able to get to his feet but because of pain, partly in his right forearm and partly in his left buttock, he was unable to continue in his work that evening and was taken to the Joondalup Health Campus.
I understand that, at that time, he underwent investigation of his pelvis and hip on the left, however, radiographs failed to demonstrate any abnormality and he was able to be discharged from hospital to the continuing care of his family practitioner, Dr G Deleuil of Mt Hawthorn.
Dr Deleuil initially organised treatment for his pain with analgesia and after approximately a week, he commenced some physical therapy treatments.
I understand, however, that this failed to settle his symptoms and as a consequence, a series of investigations was then undertaken to attempt to determine the continuing course of his pain.
He was initially referred to Dr John Quintner in and around five weeks following the incident of injury. At that time he was continuing to experience not only back pain, but pain in his left buttock and he described to me additional pain in his thigh which he indicated was anterior pain.
Dr Quintner then took steps to investigate your client with magnetic resonance image scanning. This scan (7th January 2002) I had an opportunity to sight and it demonstrates evidence of structural abnormality in the lower lumbar spine, in the form of a Grade 1 spondylolisthesis of L5 on S1 secondary to the presence of bilateral pars-interarticularis defects.
There is a suggestion that with the antero-listhesis of L5 on S1 there was narrowing of the intervertebral foramina at L5/S1 and possible compression of the left L5 nerve root.
This MRI scan was accompanied by evidence, from a radionuclear bone scan of subtle increased activity at the L4/5 intervertebral disc end plates and no other abnormality thereby suggesting no evidence of an acute pars lesion.
In view of the findings of possible nerve root compromise, I understand it was suggested that your client undergo nerve root sleeve injection of the L5 nerve root, but I understand that this was not proceeded with.
Further studies with MRI scanning of his pelvis on a second occasion (May 2002), nerve conduction studies of the lower limbs, first conducted in March 2002 and subsequently in July 2003, demonstrated evidence of subtle neuronal changes electro-physiologically but no substantive evidence of any lumbar radiculopathy.
Over time Mr Good has continued to report the presence of what he describes as deep-seated buttock pain on the left. This from time to time will radiate towards his lumbar spine. He also describes more distal discomfort in the right lower limb and pain in the front of his thigh. He has no right lower limb symptoms but he also describes the presence of central low back pain with movement restriction. He reported to me that on one occasion he had his hip injected which seemed of some relief, but I do not have available to me any radiological confirmation of the precise location of that injection.
Currently he manages with the minimum of pain medication. In the past he has utilised both the anti-inflammatory agent, Brufen and paracetamol and codeine mixtures for the control of his pain.
As a consequence of his persisting complaints he reports how his walking distance is curtailed. He walks slowly and indicated to me that walking any distance of significance reproduces left hip pain.
In addition, he describes how his gait has been unsteady and it was in a fall in September 2003 that he sustained bilateral ‘undisplaced’ fractures of his radial heads at the elbow.
He described his sitting tolerance as reduced. He indicated that pain disturbed his sleep at night often waking three and four times a night. He reports difficulty bending. He is unable to squat or kneel.
It is my understanding that he is not currently working, indeed I do not believe he has worked for over twelve months.
At the time of my consultation, clinical examination demonstrated your client to be somewhat overweight. He undressed and dressed again entirely appropriately for the examination. I found that he had centrally discomfort at the lumbo-sacral junction and he was tender along the left of the midline along the superior iliac crest and beneath this in the buttock.
There was no right sided buttock tenderness. An examination of his range of thoraco-lumbar spinal movements demonstrated he could extend his back from the prone position through some 10°. He flexed with his fingertips to 3 cm from the ankle and had rotational movements of 40° right and left.
Formal evaluation of his range of hip movements failed to demonstrate any loss of movement but I did reproduce left sided hip pain with extension of the hip whilst in the prone position and maximal abduction of the left hip.
His straight leg raising was to 80° bilaterally without nerve root tension signs. I could not fault his neurological examination of the lower limbs. I did note, however, that he had tenderness anteriorly over the hip joint – discomfort which he stated radiated into his adductor musculature of the left thigh.
With respect to the specific matters that you raise in correspondence of 2nd April 2004:
a)The ongoing injuries and symptoms of our client.
Your client, Mr Good, continues to present with restricted lumbar spine movement, central low back pain but more specifically, left sided buttock and thigh pain.
b) The improvement or deterioration in our client’s condition since your last report.
I have seen your client on one occasion only and on that occasion, documented the scope of his symptoms. He reports how his symptoms curtail standing and sitting, they reduce his working capacity and from time to time, with his reduced working capacity, he has tripped and fallen.
c) The treatment our client has received from you.
Your client has had no specific treatment under my care but I have recorded in the body of this report the treatment provided to your client by others.
It would appear that Mr Good has had pain in his low back and towards his left hip region and buttock region for a period approaching 2½ - 3 years.
As far as I can determine it, the only form of treatment initiative that he believes has improved his pain was a local injection of his left hip undertaken I believe in an around January 2003 which he indicated had provided him with some four weeks of pain relief. I note, however, that sustained structural investigation of your client’s left hip has failed to provide evidence of abnormality.
d) The likely development of our client’s condition into the foreseeable future.
In a circumstance where the diagnosis in this case is not entirely clear, I would have thought that there is no immediate evidence to suggest your client’s pain will reduce over time and in that sense, the intrusiveness of his symptoms I believe will continue. However, given the imaging and radiological evidence of an absence of significant articular pathology in the left hip, I would be hopeful that your client’s left hip function will be preserved.
…” (T45)
Report of Mr Eamonn McCloskey
Mr McCloskey, Orthopaedic Spinal Surgeon, prepared a report, dated 21 March 2011, at the request of Dr Deleuil in relation the present proceeding. Mr McCloskey’s report states as follows:
“ I reviewed Paul today on the 21st March 2011.
I reviewed this gentleman back in 2002 about his left leg symptoms. I do not have my old correspondence on me when I did see Paul today but he indicates that I had seen him for the same condition then. He says that his symptoms are ongoing with pain in his buttock, groin and posterior thigh. There is also a burning sensation in the ball of his foot on the left. Cramps in both the calf and the posterior thigh.
Right leg, bladder and bowel are fine.
He is known to have an L5/S1 spondylolisthesis secondary to L5 par fractures.
The question about liability here is very difficult. Certainly back in 1973 he had bilateral L5 par fractures and there was no evidence of any subluxation of L5 and S1. This however does not exclude any disc degeneration/disc abnormality at that stage. I note that Paul was being reviewed at that stage because of back pain. In the medical notes there is documentation about a back injury in November 1971. Paul says he injured his back at that stage by carrying one of his colleagues up a hill. Besides the comrade there were 2 rifles and a pack as well. Certainly it is possible that he injured his disc at that stage.
Degenerative change in the back however can come on without any particular incidence of trauma that a patient can document. It is my belief that pars fractures do predispose to degeneration in the disc.
As I said it is very difficult to quantify how much one can say relates to one of his conditions (spontaneous degeneration with age, degeneration related to the pars fractures or injury and subsequent degeneration related either to his work or military service). (sic)
Certainly there is a possibility as he has indicated that he did have back pain in 1971 whilst in the military that there is a degree of liability in relation to his military service.” (T23; S56)
[The Tribunal notes that a report of Mr McCloskey, dated 20 September 2002, is also in evidence (T5), but it is unnecessary to set out that report in these reasons.]
The evidence of Dr Euan Thompson
Dr Thompson, who was called as a witness by the respondent, said that he has practised as a Consultant Occupational Physician since 2006. He confirmed that he had examined the applicant, at the request of the Department of Veterans’ Affairs, on 14 January 2011 and that he had provided a report, dated 21 January 2011, to the Department. He confirmed that the contents of that report are true and correct to his knowledge.
Dr Thompson’s report of 21 January 2011 states as follows:
“ …
Mr Good is a 60 year-old man who was referred for assessment under the Safety Rehabilitation and Compensation Act of the Degree of Permanent Impairment of ‘Disc degeneration (Lumbar spondylosis) with anterolisthesis and bilateral pars defects’ claimed condition. …
…
Mr Good indicated to me that whilst he was performing voluntary National Service in the Army he reported hurting his back. This occurred during his three years in the Army in 1971. He described to me that he was asked to carry someone up a hill. He reported suffering back pain at that time and was able to show me medical records from a large file he had kept which appeared to relate to that period. This was not in the supporting documentation you sent me and appeared to be an extensive file.
Looking at the x-ray at that point, undertaken on 21 October 1971, he was described as having a spondylolisthesis and pars defect affecting the L5 and sacral area. Mr Good indicated to me that he felt that it was a pulled muscle initially but he described himself as feeling never 100% since with altered sensation on the overlying skin. Mr Good left the Army in 1973.
I understand that in subsequent years he has had a number of different jobs and whilst working as a Security Guard at Edith Cowan one night he slipped on a step (nine years ago) and his leg became painful with a burning sensation in his foot and also numbness affecting his leg. I understand from him that he saw his General Practitioner and was referred to specialists. I understand from him that he had a nerve root sleeve injection which helped for approximately one month and then relapsed. Treatment was discontinued shortly thereafter.
Mr Good’s current symptoms comprise a numb feeling affecting his left buttock, paraesthesiae affecting both his left foot and big toe and reported weakness affecting his left leg. He described himself as having constant pain which at times wakes him up at night. Walking more than 200 metes (sic) is painful and he is unable to continue. He indicated that shopping is variable. He indicated to me that he can climb up 12 steps at one time. He has had to cease his sporting activities of SCUBA diving and finds it difficult to balance in a fishing boat. He indicated to me that he still enjoys shooting with a handgun or rifle.
CURRENT COMPLAINT/DIAGNOSIS:
·Disc degeneration (Lumbar spondylosis) with anterolisthesis and bilateral pars defects.
TREATMENT TO DATE:
The history of these is described above.
As regards current medication Mr Good describes trying to avoid medications if possible. He takes the occasional Panadeine Forte when required.
PAST MEDICAL HISTORY:
Mr Good indicated to me that in 2010 he learned that he has a stenotic heart valve which requires replacement at some point although the timescales are not set.
OCCUPATIONAL HISTORY:
This gentleman went into the National Service between 1971 and 1973 and thereafter trained as a Mechanic.
He worked as a self-employed Truck Driver, long distance for many years, and has also worked as a kangaroo hunter.
His last job was nine years ago as a Security Guard working nightshift at Edith Cowan University when the incident occurred as described above. As he was unable to undertake his duties he subsequently lost his job and has reportedly not worked for the last eight years. I understand Mr Good to be on a Disability Pension.
CLINICAL FINDINGS:
On examination this gentleman is overweight. He dressed and undressed with some difficulty for the examination.
He exhibited tenderness affecting his lumbar spine with muscle tension. There was no evidence of deformity. Flexion of the lumbar spine was reduced by 30%, extension by 60%. Lateral flexion to the right was normal but pain reduced his lateral flexion to the left to 60%. Rotation to the right was normal but to the left was reduced by 30%. Straight leg raising on the right was 60° but on the left was 45° related to pain.
As regards the left hip, the hip flexion appeared normal but he experienced pain on external rotation of his left hip.
Neurologically his reflexes appeared normal and there was no evidence of muscle weakness or wasting. However he reported diminished sensation affecting the underside of his left foot and also his great toe.
…
ASSESSMENT:
Mr Good has a longstanding history of chronic low back pain which by his description appears to be related to his incident in 1971 where he injured his back whilst carrying a fellow soldier up a hill. He indicated to me that his back was ‘never right’ since then.
In 2001 he was reportedly working as a Security Guard when he suffered an incident whereby his back was jarred. It appeared that he had an increase in symptoms at that point but that the various specialists involved in investigating it were unable to elucidate a clear cause, the possible culprits being the back pathology but also the left hip. I understand that no further treatment is planned.
On imaging performed in 2009 he would appear to have moderate degenerative changes noted throughout the lumbar spine with mild anterolisthesis of L5/S1. In my opinion he has degenerative disease of the L5/S1 region resulting in symptomatic restriction of back movement and pain. The condition should be considered permanent. The date of reported initial injury was 1971 however there appears to have been a further incident in 2001 which does not relate to Military Service and has been separately investigated and treated. Were one to take this out of the equation it is difficult to predict how the incident of 1971 would relate to his current symptoms.
As the incident occurred before 1 December 1988 (1971) the body part related being the back, there is no loss of efficient use relevant as spinal injuries are not covered in the Table.
I have completed the Permanent Impairment documentation as requested.
….” (original emphasis) (T28, pp 63-67)
Dr Thompson confirmed that the “Permanent Impairment documentation” referred to at the end of his abovementioned report included a questionnaire which he also completed on 21 January 2011 (S57). In that questionnaire, Dr Thompson indicated that it was his opinion that the applicant was currently wholly incapacitated for work. He then addressed the following question:
“ If the employee is incapacitated …, is the principal cause of the incapacity attributable to the accepted condition(s) resulting from their military employment …?”
The form contained four alternative answers to that question, namely:
“ (a) Definitely not
(b) Probably not
(c) Probably
(d) Definitely”.
Dr Thompson confirmed that the answer he indicated in the form was “Probably not” and, by way of explanation of that answer, he referred to the following reasons:
·he thought it likely that the applicant’s “pars interarticularis defects” condition pre-dated his military service because that condition is a “common incidental finding” in x-rays on young men;
·subsequent to his military service the applicant had an employment history involving “heavy manual labour”, and his accidental fall in November 2001 appeared to result in an increase in severity of symptoms resulting in his ceasing work;
·there appeared to be degenerative changes in the applicant’s lumbar spine.
In cross-examination, Dr Thompson said that his description of the applicant’s post-Army employment history as involving “heavy manual labour” was based entirely on his understanding that the applicant had worked as a mechanic, a kangaroo hunter, and a long distance truck driver, and that he did not have precise knowledge of the applicant’s activities in those occupations.
Dr Thompson opined that it was “most unlikely” that the applicant’s condition of lumbar spondylosis was attributable to his Army service. He thought it likely that that condition was the result of the passage of time, advancing age, and progressive deterioration.
In response to questions from the Tribunal, Dr Thompson explained that his answer “Yes” to question 5 in the questionnaire, namely, “Are the military employment aspects of any incapacity likely to continue indefinitely?”, was based on a misunderstanding of that question and that he was not thereby acknowledging that there were any “military employment related aspects” of the applicant’s present incapacity for work. He confirmed that it is his opinion that the applicant’s present incapacity for work is not related to his military employment.
The evidence of Dr Philip Hardcastle
Dr Hardcastle, Consultant Orthopaedic Surgeon, who was called as a witness by the respondent, confirmed that he had assessed the applicant, at the request of the respondent’s solicitors, on 23 November 2011 and that he had provided a report, dated 27 November 2011, to those solicitors. He confirmed that the contents of that report, as based on information provided to him, are true and correct.
Dr Hardcastle’s report of 27 November 2011 states as follows:
“ …
BACKGROUND
Mr Good was born in Adelaide and left school in Year 9, after which he trained as a Mechanic, though he did not do a formal apprenticeship. He enlisted as a volunteer in the National Service in 1971 where he remained for two years with no overseas service. He worked in the ordnance area after doing his basic training and this included relatively light duties. In Melbourne he drove forklifts in the stores and for the remainder of the time was in Albany where he drove trucks and Land Rovers to manoeuvre troops around.
Following his discharge from the army, he did mechanical work for a short period and then had his own business as a Truck Driver, though he is not sure how long this was for. He then worked as a Bus Driver with Sandgroper Express and subsequently with Deluxe.
He had some personal problems and in order to get custody of his children, he had to stop work and was unemployed for a couple of years. He then started security work at Edith Cowan University, which he did for eight years before going on a disability pension nine years ago for hip/back problems.
PAST HISTORY
He reports being in good medical health and takes occasional pain medication for his hip/back problems, which ranges between nil to six tablets a day.
He underwent a cardiac valve replacement three months ago and takes about eight medications including warfarin.
He has been involved in only minor motor vehicle accidents and denies any previous problems with his back or hip prior to his army service.
PERSONAL HISTORY
He has been married four times and has two children from his second marriage and one from his third. He has been with his current wife for the past five years and she works.
He is a non-smoker who does not drink alcohol. He used to enjoy scuba diving but has difficulty getting in and out of the boat, so he has not been able to do this. He now does shooting at the Perth Rifle Club where he uses handguns
DETAILS OF INJURY
He reports that in 1971 while doing basic training, he had to carry another soldier and their pack and rifle up a hill as a one-off manoeuvre. He reports the distance as about 150-200 metres and when he reached the top, he noted that there was some pain in his hip region. He was carried back down by the other soldier and evidently attended hospital in Victoria where x-rays were performed and he was subsequently placed on light duties. He also took some medication but was not sure for how long. He said that he completed his basic training and had a continuing sensation of numbness in the left side of his lower back region but did not have any treatment.
PROGRESS
He reports that he had occasional low back pain following his discharge but no treatment or lost time off work up until his employment at the university. This involved a significant amount of walking and he began to notice increased pain in the hip region. There was a minor injury on the 30 November 2001 when he was locking up a building and slipped on some stairs, falling back and striking his right elbow on a rail. He underwent x-rays at Joondalup Hospital and was then sent home.
He said that he went off work at that stage because of symptoms in his left leg and he had an injection into the left hip, which provided good relief for a few weeks, and this does support the problem being in the left hip at that time. He said that he was unable to perform his full time duties and it was decided that this was due to a pre-existing condition, so he took redundancy and did not make a workers’ compensation claim. He has not worked since and is receiving a disability pension.
Currently he takes Panadeine Forte intermittently, between nil and six per day.
STATUS AT PRESENT
He complains of pain in the left groin and posterior hip region, which radiates down to the thigh with tingling in the heel or ball of his foot intermittently and he loses balance at times. There is numbness generally in the foot and the front of the thigh, which varies, and he reports that it comes and goes for no specific reason. The numbness is not constant but does occur every day and lasts a variable period.
Symptoms are variable in the morning but he does wake regularly at night. He said that when he walks, his head feels as though it will explode, though he has not fallen, and his leg feels dead at times but this resolves when he sits down.
He said that he has no idea of how much he could lift as he has not tried. Aggravating factors include standing and walking but there are no specific relieving factors.
Bowel and bladder function are reported as normal.
CURRENT ACTIVITIES
He uses an automatic four wheel drive but has some difficulty if he has to drive or travel in his wife’s smaller car. At home he sometimes makes the bed and occasionally mops and vacuums but generally his wife does most of the household duties, as well as her full-time work. The Department of Veterans’ Affairs pays for a gardener and he does not wash his car but takes it to a carwash. He goes shopping with his wife, watches television and spends a lot of his time at his computer but rarely goes out. He said that his walking is restricted to about 15 minutes.
CLINICAL ASSESSMENT
He was a well looking man with short greying brown hair and a normal gait who was 167 cms in height and weighed 112 kg.
Upper Limbs
·These had a normal appearance with slight Heberden’s nodes but no tremor, laxity or callosities.
·There was a little stiffness on movement but he had a good range of abduction.
Back/Spine
·There were normal curves and no specific tenderness today.
·On forward flexion, the fingertips came to the knees with extension and lateral flexion on the left being painful but not the right. Rotation was 15 degrees to both sides in the sitting position.
·Simulated rotation and head compression tests were negative.
Lower Limbs
·There was normal alignment and straight leg raising was 90 degrees on both sides.
·He had evidence of a tendo-Achilles swelling on the left heel.
·Reflexes were symmetrical and intact.
· Nerve compression tests were negative.
· Motor examination was normal.
·There was some decreased sensation on the sole of his left foot, just proximal to the toes, but otherwise sensation was equal on both sides to light touch.
· Quadriceps and calf circumferences were equal to measurement.
·He could walk on his toes and heels and squat with the knees flexing to 90 degrees.
·Hip examination did not demonstrate any specific tenderness and his range of movement was symmetrical and equal. Flexion was 100 degrees, internal rotation 10 degrees, external rotation 25 degrees, abduction 40 degrees, adduction 10 degrees and no extension on either side.
INVESTIGATIONS
·Plain x-rays left hip (24 January 2000, 30 November 2001, 11 December 2003)
These would all be considered normal
·Technetium bone scan (3 January 2002)
·This has been reported … as not showing any specific features in relation to the left hip. Some low grade changes were found at T11/12 on the right and the L4/5 intervertebral disc space being the predominant areas of increased activity.
·MRI lumbar spine (7 January 2002)
There is a grade 1 spondylolisthesis at L5/S1 with L5 pars interarticularis defects. The L4/5 level is stable. There is narrowing of the foramen at L5/S1 on both sides with possible left L5 nerve compression.
·MRI left hip (19 February and 25 May 2002)
Neither of these demonstrate any evidence of degenerative disease. I do not have any official report and the interpretation of the soft tissues is out of my area of expertise.
·EMG (7 March 2002)
This has essentially been reported as normal for the lower lumbar spine, particularly the L5 and S1 nerve roots being normal for the common peroneal and sural.
Radiological Reports
·Plain x-rays lumbar spine (21 October 1971)
This has reported possible pars interarticularis defects at L5 without displacement.
·Plain x-rays lumbar spine (28 February 1973)
The clinical notes are that there has been recommendation for oblique views to assess whether there were pars defects. There is no reference to symptoms in terms of backache in relation to these x-rays. The report confirms pars interarticularis defects at L5 without displacement of L5/S1 and no evidence of intervertebral disc narrowing.
OPINION
Reviewing the army medical notes, there is reference to development of an episode of back pain. The subsequent medical examination record dated 18 July 1972 refers to the back being normal and the discharge report from Dr Checcucu notes all medical complaints and problems and is quite an extensive list. There is a further medical examination record by Dr Demetrius dated 1 March 1973 where it is reported that the back is normal on examination and refers to the fact that it does not worry him when working as a Mechanic.
It is accepted that bilateral pars interarticularis defects occur normally in the spine in 7 percent of the Caucasian population, developing generally between the ages of four to 17 and usually asymptomatic unless people are involved in repetitive physical activities. It is accepted that with the passage of natural degeneration, the condition of bilateral pars interarticularis subsequently progresses to a spondylolisthesis and the degree of forward slip of L5 on S1 in time varies and that later in life, when there is generally evidence of fairly significant displacement and narrowing of the intervertebral disc, nerve root entrapment and leg pain can occur in a percentage of people with this condition.
His history of complaints of pain around the left hip region has not specifically been diagnosed, even around the period of increased walking with his university duties as a Security Officer. At this time he was seen by Mr Michael Holt, whose opinion at that time was the fact that he experienced good relief with the hip injection which does support the pain in this period being due to the hip and not the low back. Therefore in the period where he reports intermittent symptoms up until that period, the pain could have been either from the lumbar spine or hip, though on evidence more likely the hip despite the relatively normal appearances of the MRI scans in this period. The subsequent progression of pain down the leg and particularly in the thigh would not be considered related to his spondylolisthesis but pain extending down into the ankle region on the left could be related to the progressive degeneration of the spondylolisthesis over time. However, there is no evidence to support this being specifically related to the work incident when the symptoms first started around 1971.
The spondylolisthesis has progressed and his clinical findings are consistent with his current pain being from a combination of his lumbar spine and some early degeneration involving the left hip where clinical findings demonstrated some restricted movement consistent with degeneration and there is no history of any injury directly to the left hip.
Mr McCloskey in his assessment referred to possible nerve sleeve injections and facet blocks, which I understand have not been performed, but this would be the next stage if he was going to undergo any treatment for his current condition.
In answer to your specific questions:
5.1whether Mr Good presently suffers from a left leg/hip/buttock condition and, if so:
He continues to complain of left buttock and hip pain.
5.2whether the condition was materially contributed to by his military service for which the Commission has accepted liability for disc degeneration (lumbar spondylosis with anterolisthesis and bilateral pars defects;
It is not my opinion that the condition has been materially contributed to by his military service.
5.3whether Mr Good’s accident in 2001 aggravated his accepted condition.
The evidence is that the injury of 2001 potentially related more to his left hip, taking into account the enclosed report from Mr Michael Holt.
24.1Does Mr Good presently suffer from a left hip, leg and/or buttock condition and, if so:
24.1.1please specify the exact diagnosis of the condition;
There appear to be two components to his pain; one from the lumbar spine and the other from the left hip.
24.1.2the date on which the condition first developed.
It is not possible to answer this question specifically. The medical records from his army notes refer to some low back pain, but not to leg pain, and his discharge report refers to no symptoms and normal examination findings in relation to the lumbar spine. He is vague about his periods of time at work and symptoms following discharge, though there is reference in 1973 that he was working without problems as a Mechanic. During his army service there were also periods of anxiety and it is accepted generally that psychological factors can cause pain of a non-organic nature.
The nature of the duties that he performed in the army were relatively light apart from the normal basic training, but I was unable to find any objective evidence that there were any specific symptoms in relation to his lumbar spine, apart from that first reported after the one incident and that these symptoms were relatively short-lived. There are no specific examinations at the time of the 1971 incident; only the radiological report referring to a lumbar backache with clinical notes of 18 October and 8 November 1971 making no reference to low back pain, which would suggest that this lumbar backache was very transient and lasting certainly less than a week.
This does however support the low back pain onset date of around 15 October 1971. The first record that you have enclosed in relation to left hip pain is 23 January 2000, as there is certainly no reference to any hip pain on the medical board examination record.
It does appear that the left leg pain extending below the buttock and into the foot started after the fall of 2001 while working as a Security Guard. It is unlikely that this pain in the leg relates to his hip but more to the degenerative spondylolisthesis. It certainly would not specifically relate to the military service.
24.2If you consider that Mr Good does suffer from a left hip, leg and/or buttock condition, what do you consider has caused this/these condition and, specifically, have they been materially contributed to by his military service? By ‘material’, we mean more than a mere contributing factor.
It is not my opinion that his low back condition has been materially contributed to by his military service, taking into account all of the available information. Pars interarticularis defects do occur naturally, as I have reported under Opinion above, and can become symptomatic either in relation to mechanical back problems or later in life due to progression of the concomitant degeneration and spondylolisthesis, with the latter causing leg pain. It is possible that he had an episode of mechanical pain from that work activity, but that the effects resolved on evidence and it has not had any specific effect (has not materially contributed) on its progression, which would be considered normal for his condition, reviewing the x-rays.
…” (S58)
In his examination-in-chief Dr Hardcastle opined that the x-ray findings on 21 October 1971 and 28 February 1973 regarding the applicant’s lumbar spine, referred to in his report, are “not associated with increased risk of back pain in the normal population” at the time of those findings.
Dr Hardcastle opined that, having regard to all the information provided to him regarding the applicant’s military service and his subsequent employment history, the applicant would be in the same position today, as regards his back condition, absent his military service.
Dr Hardcastle referred to the following passage from Apley’s System of Orthopaedics and Fractures (8th ed) at p 399:
“ Lytic (isthmic) spondylolisthesis with less than 10% displacement is usually asymptomatic, does not progress after adulthood, does not predispose the patient to later back problems and is not a contraindication to strenuous work (Wiltse et al., 1990). With slips of more than 25% there is an increased risk of backache in later life.” (part of Exhibit R3)
He said that the first sentence in that passage describes the condition of the applicant’s lower lumbar spine. He added that the MRI of 7 January 2002, referred to in his report, had found a “grade 1” spondylolisthesis at L5/S1, and he explained that “grade 1” refers to a displacement of less than 25%.
In cross-examination, Dr Hardcastle acknowledged that, given the x-ray finding of 21 October 1971, it was “possible” that the applicant experienced back pain at that time. He acknowledged that the applicant’s carrying another soldier (as described under the heading "DETAILS OF INJURY” in his report) may have caused him to suffer some back pain, but, he added, “it’s not going to cause pars defects or degeneration of the disc”. He further added, however, that it may have caused a “strain” of the disc and a “temporary aggravation” of back pain.
Dr Hardcastle opined that neither the applicant’s military service, nor any of his subsequent employment activities, had altered the “natural history” of degeneration of his lumbar spine.
In response to a question from the Tribunal, Dr Hardcastle said that his reference to a minor “injury” on the 30 November 2001, under the heading “PROGRESS” in his report, should have been expressed as a minor “fall”.
The Relevant Legislation
The SRC Act
Section 124 of the SRC Act relevantly provides:
“ 124 Application of Act to pre-existing injuries
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act – under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.
…”
In s 4(1) of the SRC Act, the phrase “the 1971 Act” is defined to mean the Compensation (Commonwealth Government Employees) Act 1971.
Section 19 of the SRC Act provides for the amount of compensation payable to an employee who is incapacitated for work as a result of an injury.
The Compensation (Commonwealth Government Employees) Act 1971 (Cth)
The Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”), as in force when the relevant injury was suffered, relevantly provided as follows:
“ 5 (1) In this act, unless the contrary intention appears –
…
‘disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;
…
‘injury’ means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease;
…”
“27 (1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
…”
29(1) Where –
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2) If -
(a)the death of the employee;
(b)a loss to the employee of a kind referred to in section 39 or 40 of this Act;
(c)facial disfigurement to the employee;
(d)a loss to the employee of the sense of taste or smell; or
(e)the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence or (sic) the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears –
(f)the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g)the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.
…”
Sections 45 and 46 of the 1971 Act provided for the amount of compensation payable to an employee in the case of, respectively, total incapacity for work, and partial incapacity for work, resulting from an injury.
The Issues
The substantive issue for the Tribunal’s determination is whether the respondent is liable under the SRC Act to pay to the applicant compensation for incapacity for work in relation to the injury for which it accepted liability on 29 September 2010 (see paragraph 2 above). The respondent, however, relying on Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253, put in issue the appropriate description of that injury, submitting that the medical evidence – in particular the report and oral evidence of Dr Philip Hardcastle – “indicates that [it] could be described as ‘transient episode of mechanical back pain of a week’s duration’”.
Analysis
The appropriate description of the applicant’s compensable injury
The description of the applicant’s compensable injury in the delegate’s determination of 28 September 2010, namely, “Disc Degeneration (Lumbar Spondylosis) With Anterolisthesis & Bilateral Pars Defects”, appears to have been based on an opinion of Dr J Yin (a medical officer with the Department of Veterans’ Affairs) stated in a handwritten file note, dated 28 September 2010, provided by Dr Yin in response to a request by that delegate dated 28 September 2010 (see T16 and T17). Dr Yin has not stated, in his handwritten file note, the basis of his description of the applicant’s injury. The Tribunal notes, however, that, in his request to Dr Yin for his opinion, the delegate requested Dr Yin to “peruse the service medical records and other evidence on file”.
The Tribunal attaches greater weight to the comprehensive report and oral evidence of Dr Hardcastle, Consultant Orthopaedic Surgeon, than it attaches to the abovementioned note of Dr Yin. In his report of 27 November 2011 (set out in paragraph 38 above), Dr Hardcastle, having reviewed the applicant’s service medical records, refers to “an episode of back pain” on 15 October 1971, and to subsequent medical examination records dated 18 July 1972 and 1 March 1973 which refer to the applicant’s back being “normal”, and he comments that the absence of reference to low back pain in clinical notes of 18 October and 8 November 1971 would suggest that the applicant’s “backache was very transient and lasting certainly less than a week”. In his oral evidence Dr Hardcastle opined that the activity in which the applicant carried another soldier (as described in his report) would not have caused pars defects or degeneration of a disc in the applicant’s lumbar spine, but it may have caused a “strain” of that disc.
Furthermore, Dr Thompson, Consultant Occupational Physician, opined in his oral evidence that it was likely that the applicant’s pars interarticularis defects condition pre-dated his military service and that it was “most unlikely” that his lumbar spondylosis condition could be attributable to his military service.
On the basis of the expert evidence of Dr Hardcastle and Dr Thompson, the Tribunal is satisfied, and finds, that “Disc Degeneration (Lumbar Spondylosis) With Anterolisthesis & Bilateral Pars Defects” is not a correct description of the compensable back injury which the applicant suffered in 1971. On the basis of Dr Hardcastle’s evidence, the Tribunal is satisfied, and finds, that the compensable back injury which the applicant suffered in 1971 is appropriately described as: “episode of mechanical back pain”. The Tribunal also finds that the date of that injury, for the purposes of the 1971 Act and the SRC Act, is 15 October 1971.
Has the compensable injury suffered by the applicant on 15 October 1971 resulted in his being incapacitated for work?
It appears to be common ground that the applicant is presently incapacitated for work. The Tribunal notes the questionnaire completed by Dr Thompson, Consultant Occupational Physician, on 21 January 2011, in which he indicated that the applicant is wholly incapacitated for work (see paragraph 33 above). The Tribunal notes that there is no recent medical evidence before it which disputes that proposition.
On the basis of Dr Thompson’s evidence, the Tribunal is satisfied, and finds, that the applicant is presently totally incapacitated for work.
The critical question for present purposes, however, is whether the applicant’s present incapacity for work results from the compensable back injury suffered by him on 15 October 1971.
Amongst the voluminous medical evidence before the Tribunal – most of which relates to the effect of the injury which the applicant suffered in the incident when he fell or slipped on stairs in the course of his employment as a security officer with Edith Cowan University on 30 November 2001 – there is no medical evidence which supports the proposition that the applicant’s present incapacity for work is causally related to the compensable back injury which he suffered in the course of his military service on 15 October 1971.
The medical evidence which comes closest to supporting that proposition is the report of Mr McCloskey dated 21 March 2011 (set out in paragraph 30 above). In that report Mr McCloskey comments that the question of “liability” is “very difficult”, refers to various possible causes of the applicant’s present lumbar spinal condition, namely, “spontaneous degeneration with age, degeneration related to the pars fractures or injury and subsequent degeneration related either to his work or military service”, and concludes:
“ Certainly there is a possibility as he has indicated that he did have back pain in 1971 whilst in the military that there is a degree of liability in relation to his military service.”
Mr McCloskey’s report, however, does not address the question whether the applicant’s present incapacity for work is causally related to the back injury which he suffered in the course of his military service on 15 October 1971. Indeed, Mr McCloskey’s report makes no reference to the applicant’s incapacity for work. It seems to the Tribunal that Mr McCloskey’s report instead addresses the question whether the applicant’s present degenerative lumbar spinal condition is causally related to his military service – in particular, the incident of 15 October 1971 – and, in the Tribunal’s opinion, it falls well short of supporting such a causal relationship.
As regards Dr Yin’s note of 28 September 2010 referred to in paragraph 50 above, it seems to the Tribunal that Dr Yin was addressing (as requested by the delegate) only the questions of the diagnosis and date of the back condition suffered by the applicant in 1971 and whether that condition was causally related to his military service – he was not addressing the applicant’s current lumbar spinal condition and made no reference to the applicant’s incapacity for work.
The only medical evidence before the Tribunal which directly addresses the question whether the applicant’s present incapacity for work is causally related to the compensable back injury which he suffered in the course of his military service on 15 October 1971 is the evidence of Dr Thompson. In his oral evidence Dr Thompson confirmed that it is his opinion that the applicant’s present incapacity for work is not related to his military employment. He also opined that it is “most unlikely” that the applicant’s condition of lumbar spondylosis is attributable to his Army service and that it is likely that that condition has resulted from “the passage of time, advancing age and progressive deterioration”.
Although Dr Hardcastle’s report and evidence, like Mr McCloskey’s report, addressed the question whether the applicant’s present degenerative spinal condition is causally related to the back injury which he suffered on 15 October 1971 in the course of his military service rather than the question whether the applicant’s present incapacity for work is causally related to that injury, it is, in the Tribunal’s opinion, necessarily implicit in his report and evidence that he is of the opinion that the applicant’s present incapacity for work is not related to that injury. That Dr Hardcastle is of that opinion necessarily follows from his stated opinion that the episode of mechanical back pain which the applicant suffered on 15 October 1971 in the course of his military service – being the relevant compensable back injury - resolved shortly thereafter and that neither that injury, nor his military service generally, has materially contributed to his present degenerative lumbar spinal condition. He opined that the present condition of the applicant’s lumbar spine is the result of the “natural history” of degeneration of his lumbar spine.
The applicant sought to rely on the report of Mr Stewart Brash, dated 23 July 2002 (set out in paragraph 24 above), and reports of Dr Brian Dare, dated 26 November 2002 and 21 May 2003 (set out in paragraphs 21 and 22, respectively), in which the opinion is expressed that the applicant had, as at the dates of those reports, fully recovered from the effects of the incident of 30 November 2001 when he fell or slipped on stairs in the course of his employment as a security officer with Edith Cowan University. The applicant’s contention, based on those reports, appears to be that, given that he had fully recovered from the 30 November 2001 incident by July 2002, his present incapacity for work must therefore be caused by, or result from, his compensable back injury which he suffered on 15 October 1971. That contention draws a very long bow, to say the least, and, in the light of the recent evidence of Dr Thompson and Dr Hardcastle to the effect that the applicant’s present incapacity for work is not causally related to the back injury which he suffered on 15 October 1971 in the course of his military service, it cannot be accepted.
The applicant finally submitted that he should be given the “benefit of the doubt with regard to his claims of an ongoing lower back condition resulting from his military service”. The ultimate question for the Tribunal’s determination, however, is not whether or not the applicant should be given the benefit of any doubt regarding a causal relationship between his compensable back injury of 15 October 1971 and his present incapacity for work. Instead, the ultimate question for the Tribunal’s determination is whether, having regard to the whole of the evidence before it, it is satisfied, on the balance of probabilities, that such a causal relationship exists.
Having regard to the whole of the evidence before it, the Tribunal is satisfied, and finds, that the applicant’s present incapacity for work is not causally related to the compensable back injury suffered by him on 15 October 1971. The Tribunal makes that finding primarily on the basis of the recent evidence of Dr Thompson and Dr Hardcastle, and in the absence of any medical evidence which supports the existence of such a causal relationship.
Accordingly, the determination of the Tribunal is that, for the purposes of the 1971 Act and the SRC Act, the applicant’s present total incapacity for work has not resulted from the compensable back injury suffered by him on 15 October 1971.
Conclusion
The Tribunal concludes, therefore, that the respondent is not liable under the SRC Act to pay to the applicant compensation for incapacity for work in respect of the compensable back injury suffered by him on 15 October 1971, namely, “episode of mechanical back pain”.
Decision
For the above reasons, the decision under review is varied by altering the description of the compensable injury to “episode of mechanical back pain”, the date of injury being 15 October 1971, but that decision is, in all other respects, affirmed.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ...........[sgd D Brodie]........................................................
Administrative Assistant
Dated 27 September 2012
Dates of Hearing
10, 11 July 2012
Date of last Written Submissions
6 August 2012
Representative of the Applicant
Mr A Endrey
Counsel for the Respondent
Mr C Clark
Solicitors for the Respondent
Australian Government Solicitor
Key Legal Topics
Areas of Law
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Compensation Law
Legal Concepts
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Compensatory Damages
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Limitation Periods
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Unconscionable Conduct
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Admissibility of Evidence
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