Phillips and Military Rehabilitation and Compensation Commission

[2007] AATA 1055

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1055

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/918

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NEIL PHILLIPS

Applicant

And MILITARY REHABILITATION & COMPENSATION COMMISSION (MRCC)

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Thorpe, Member

Date13 February 2007

PlaceSydney

Decision The decision under review is affirmed 

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

Ms Robin Hunt
  Senior Member  

Catchwords

COMPENSATION – RAAF cook – work related injury - thoracic spine sprain – no continuing injury – no work-caused continuing incapacity for work – decision under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 19

13 February 2007  Ms Robin Hunt, Senior Member
  Dr M Thorpe, Member

REASONS FOR DECISION

Summary

1.        Mr Neil Phillips, the applicant, applied to the tribunal for review of the decision of the Commission rejecting his claim for continuing payments of compensation. We have considered Mr Phillip’s claim, taking into account his submissions and evidence, but have decided that the Commission’s decision should be affirmed. This means Mr Phillip’s claim has been unsuccessful.

Background

2.        Mr Phillips was born in 1963 and was aged 44 when the tribunal conducted the hearing of his claim for compensation on 10 and 11 January 2007.  When the incident that gave rise to Mr Phillips’ claim occurred, he was a member of the Royal Australian Air Force employed as a cook.  He was injured on 5 February 2003, when engaged in training exercises as part of his duties. Mr Phillips wrote, on 16 September 2003 (at T49,108), that a heavy backpack fell on his forearm, jarring his spine sideways. He explained that something on the pack “pinched” the upper part of his arm, leaving a bruise, which was still evident seven months later. The pinching caused him to let go of the pack so that it fell on his left forearm.

3.        The Commission accepted liability for the injury in a determination dated 17 September 2003. The accepted condition was ‘thoracic spine sprain’. The Commission made Mr Phillips payments of compensation for about three years, until a delegate’s determination in 2006 that any compensable incapacity resulting from the injury had ceased. Mr Phillips stated that he was unable to work as a result of the injury when, on 8 February 2005, he completed an incapacity claim form. On 22 July 2005, the Commission increased his payments but, on 26 October 2005, the Commission reduced his payments as from 25 November 2005, when he was discharged from the service.

4.        On 13 March 2006, a delegate of the Commission determined that he was no longer entitled to receive compensation. The determination was based on the opinion of Dr Thomas A Silva, a consultant orthopaedic surgeon, that Mr Phillips was not incapacitated for work. Mr Phillips, however, claims that he is still unable to work because of the pain and disabling effects of the injury. He argues that compensation payments should continue.

Issues

5.        The issues we have been asked to decide are:

·Does Mr Phillips continue to suffer the effects of the condition for which the Commission accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988

(SRC Act), that is, ‘thoracic spine sprain’?

·

If so, does he suffer an incapacity for work as a result of the accepted condition?

·Is the respondent liable to pay compensation for any incapacity for work suffered as a result of the accepted condition pursuant to Division 3 of Part II of the SRC Act?

·Is there any other basis for Mr Phillips to receive compensation for incapacity for work?

Analysis and Findings

6.        Mr Phillips appeared in person and gave evidence and presented legal arguments unassisted.  Mr Phillips did not rely on any specialist medical opinions beyond those furnished by the respondent. We had before us reports of medical practitioners obtained by the Commission and the information in claim forms furnished by Mr Phillips’ general practitioner when filling out the Commission’s standard claim forms.

7.        Mr Phillips expressed the opinion in his “statement of objection”, received by the tribunal on 12 December 2006, that the main reason for the decision under review was that Mr Phillips had a web site critical of the Department of Veterans Affairs. Mr Phillips also criticised a perceived lack of independence of the delegate who made the reviewable decision. Mr Phillips also found some errors in submissions prepared by the Commission for the tribunal. He questioned why statements lodged with the tribunal on behalf of the Commission were signed by someone other than the person he believed was the instructing solicitor. He accused counsel appearing for the respondent of misleading the tribunal when making submissions to us. Mr Phillips also complained about aspects of his history with the Commission as well as the opinions and evidence given by medical practitioners in earlier proceedings. 

8.        None of these complaints are relevant to our consideration of Mr Phillips’ present claim. We do not accept that we were misled by any submission made by the respondent’s counsel or that the medical reports and evidence put before us by the respondent were less than honest opinions and accurate records. The respondent has provided a written response to the applicant’s complaints pointing out why some matters were highlighted in submissions, admitting to some minor errors and explaining that much of the information included in the facts and contentions was by way of background only. We have drawn our own conclusions from the medical opinions before us and the previous history of relations between Mr Phillips and officers employed by the Commission has no bearing on the matters we are required to consider for the review.  As we are reconsidering Mr Phillips’ claim afresh, we have not gone into the delegate’s reasons for the decision under review. Our task is to make our own findings and to make the correct or preferable decision on that basis.

9.        Mr Phillips told us he could not work due to pain, restriction of movement and stress. Mr Phillips also contended that his workplace injury was properly described as ‘enthesopathy’ and that this was not the same as the accepted condition of ‘thoracic back sprain’. He also drew a distinction between ‘sprain’ and ‘strain’, complaining that these terms had been used interchangeably by doctors who had examined him in connection with his claim and that their opinions were flawed in these respects.

10.      We have made our findings on our analysis of the material before us both from Mr Philips and the Commission including the doctors’ opinions furnished. Our findings and further reasons for decision continue below.

The medical evidence

11.      A number of doctors, including specialists, have examined Mr Phillips and furnished reports.  When the Commission accepted liability for ‘thoracic back sprain’ occurring on 5 February 2003, the delegate who made that decision stated that she referred to service medical records and the report of Dr James Evans, orthopaedic surgeon, who made the diagnosis. Dr Evans later re-examined Mr Phillips and made further reports on his progress.

12.      Medical evidence available includes the outpatient clinical record entry by an Air Force Medical Officer, Dr Davis, in November 2003. Dr Davis noted ‘thoracic interspinous ligaments/enthesopathies’ and that Mr Philips’ ongoing thoracic spine condition had not changed in the past 9 months. He noted Mr Philip was seeing a ‘Norm Rees’ to assist with pain management and observed some limitation of movement.  Further reports before us include the opinion of Dr A J Delaney, dated 27 November 2003, that Mr Phillips’ condition had not changed since 27 July 2003. Dr Delaney did not describe Mr Phillips’ condition in diagnostic terms but mentioned that he reviewed previous examinations and had careful discussion of interspinous ligaments.  

13.      We note that Mr Phillips does have some residual effects from the injury. Dr Evans, on 16 October 2003, assessed 5% whole person impairment in respect of Mr Phillips’ back condition. As well, on 17 May 2004, wrote that Dr Martin McGee-Collett, another of the specialist doctors, to whom Mr Phillips was referred, assessed his permanent impairment at 5%. Dr McGee-Collett also wrote that, from an objective perspective, Mr Phillips should not be incapacitated for work but that Mr Phillips’s pain, viewed subjectively, was of a severity that prevented his engagement in normal activities as a cook. We mention these opinions in passing only as we are not required to make a finding about the degree of Mr Phillips’ impairment for the present review but are considering his capacity or not to work. In this connection, we also note that Dr N Samaraweena, a GP, certified Mr Phillips as unfit for work as at 8 February 2005. Dr Samaraweena also certified Mr Phillips unfit for work on other occasions until 31 March 2006.

14.      Dr N Zwartzka, a senior medical adviser in the Department of Veterans’ Affairs,  wrote an internal minute, on 4 November 2003, in which he pointed out that Mr Phillips claimed the appropriate diagnosis for his condition was ‘enthesopathy’ and not ‘thoracic back sprain’. Dr N Zwartzka observed that enthesopathy referred to any pathological process of ligaments and was a very general term. He saw no problem in maintaining this term to describe the injury if specific clarification was maintained as well. He suggested, for example, an appropriate description might be ‘enthesopathy – thoracic interspinous ligaments sprain’. He thought the injury should heal within 4 to 8 weeks, noting that a nuclear scan of 20 March 2003 demonstrated healing enthesopathies and an MRI scan of 22 July 2003 showed no remaining pathological process. Dr Zwartzka further noted Mr Phillips’ complaint of limitation of function could not be explained by ADF medical personnel, neurologist and orthopaedic specialist and suggested a neurological assessment, recommending Dr McGee-Collett.

15.      Dr McGee-Collett saw Mr Philips in April and May 2004 and furnished more than one report on Mr Phillips’ condition in 2004. On 17 May 2004, he stated that Mr Phillips suffered from ‘upper thoracic back pain attributable to enthesopathy (spinal ligamentous injury) as demonstrated on a bone scan performed in March 2003’. On 8 June 2004, Dr McGee-Collett provided a supplementary report in which he referred to a further bone scan performed on 27 February 2004. The doctor updated his opinion on 8 June 2004 by setting out that the further bone scan showed ongoing inflammation at the tendon/ligament interface consistent with enthesopathy. A regional bone scan report from Dr Peter Chapman, dated 27 February 2004, noted mildly increased uptake in the spinous processes of T1, 2, 3 and 4 and possible T10 ‘similar to previously but marginally less intense’.

16.      Dr Philip Vecchio, rheumatologist, on 7 August 2004, diagnosed chronic traction strain of the muscles that attach to the T1-T4 spinous processes and considered Mr Phillips was not incapacitated for all work because of his condition but that he would be extremely limited in heavy lifting and routine defence work. Dr Vecchio commented that the diagnosis of ‘enthesopathy’ seemed to have ‘overwhelmed the issue’. He explained that the term covered more than one condition and could be suggestive of chronic traction strain of the muscles which attach to the spinous processes of the upper thoracic vertebrae and that this would be a more correct diagnosis. We note that Mr Phillips took exception to Dr Vecchio because he was not registered in NSW as a practitioner. Nevertheless, we have included Dr Vecchio’s opinions in our consideration because Mr Phillips’ research set out in materials before us show that Dr Vecchio was registered in Queensland at the time. We draw no adverse inference from the doctor being registered in one state of Australia or another.

17.      In his report of 13 December 2005, Dr Thomas Silva, consultant orthopaedic surgeon, diagnosed Mr Phillips as ‘probably suffering interspinous ligament strain from T1-T4 of the thoracic spine’. He considered the continuing symptoms had a significant non-organic basis. While the initial cause may have been a result of the employment, the current condition was not related to the employment as the upper thoracic ligament strain had resolved. Dr Silva believed Mr Phillips was not incapacitated for work and was fit for his pre-injury duties as a cook. Dr Silva also, on 22 March 2006, responded in writing to criticisms of his examination and report of 13 December 2005. He apologised for any offence he had caused Mr Phillips and emphasised that his diagnosis, opinion and prognosis depended entirely on his clinical and radiological observations and to the best of his knowledge on all the information provided.  

18.      For the review, we have no new medical opinions or reports apart from a supplementary report furnished by Dr Silva on 22 March 2006 at the request of the respondent. We have before us a MRI scan report furnished on 24 July 2006, after the making of the reviewable decision (T172, 530). We also heard oral evidence from Dr Silva. Mr Phillips gave us some definitions of medical terms such as ‘ligament’, ‘sprain’ and ‘strain’ which he obtained from an internet source. Unfortunately, Mr Phillips has not obtained or provided to us any independent medical opinion or legal advice although this course of action was suggested to him by Cowdroy J in Federal Court proceedings he took and which are reported as Phillips v Military Rehabilitation and Compensation Commission [2006] FCA 882 (7 July 2006).

19.      Dr Silva told us he had seen the previous reports of Dr McGee-Collett and Dr Vecchio as well as two scans.  He conceded there were several typographical errors in his report. Dr Silva, however, was emphatic that he had reached his opinion and diagnosis through a correct process of taking a history from Mr Phillips, followed by a clinical examination and lastly by looking at the TC and MRI scans furnished to him. Dr Silva gave evidence he saw the actual scans and x-rays supplied to him and not just reports. He could see the indications of Mr Phillips’ injury in these images.

20.      The medical evidence is all similar. There is no dispute that Mr Phillips suffered a work-related injury. There are permanent signs of this injury which show up in scans. However, as Dr Silva stated in evidence, these signs are not an injury as such but the remnants of the initial injury and are part of the healing process. Dr Silva gave oral evidence that he could see that Mr Phillips had probably suffered “interspinous ligament strain from T1 to T4 of the thoracic spine”. He added that the organic content of this had probably resolved. Dr Silva’s further opinion was that Mr Philips was fit to return to his former occupation as a cook but that it was not reasonable for him to have to carry a 40kg backpack. He suggested no other restrictions. Dr Silva further explained in oral evidence that the phrase “interspinous ligament strain” meant the same as the Greek word “enthesopathy”, which was an expression used in some of the medical opinions before us.

21.      Mr Phillips told the tribunal that he believed he was suffering from a bone injury which was appropriately labelled as an enthesopathy. However, we accept Dr Silva’s evidence that enthesopathy is not an injury as such but the signs of a former injury. Dr Silva told us that, when a ligamentous strain or sprain occurs, tiny fragments of bone are pulled away as the ligament separates from the bone. These fragments appear as spots in a scan and “light up like a Christmas tree”. References in scans to “uptake of contrast” and alterations in the black and white areas of the scans occur from time to time but do not denote a continuing injury. Dr Silva, in response to questioning, said that usually ‘strain’ and ‘sprain’ were used interchangeably and that certainly he tended to do so.

22.      Dr Silva did not change his opinion when shown a report of the scan which was performed on 24 July 2006, after he had written his reports of 13 December 2005 and 20 March 2006. The scan report in 2006 described “mildly increased focal uptake in the spinous processes of T1 to T4” and went on to say these appeared essentially unchanged since the 2004 study. The 2006 images obtained also showed mildly increased uptake in the lower lumbar spine. There is no evidence before us that the lumbar spine was injured in 2003 and the Commission did not accept any such injury in its initial acceptance of liability.

24.      Dr Silva told the tribunal that he made a clinical correlation, as he had stated in his report. We note that the scan report of 24 July 2006 concluded with a recommendation that “clinical correlation is suggested”. Dr Silva explained that his clinical correlation involved the process of history taking, clinical examination and inspection of the radiological images. As counsel for the Commission pointed out, radiologists do not conduct clinical examinations, an essential part of accurate diagnosis. Dr Silva duly completed the task of diagnosis after the process of clinical correlation.

25.      On 12 January 2007, Mr Phillips wrote to the tribunal with some adverse comments about Dr Silva’s testimony and his qualifications. He suggested that Dr Silva was not independent but intended to help the respondent. He took this view partly from Dr Silva’s written statement that his assessment was designed to help the authorities. We consider that Dr Silva has acted appropriately in providing his honest opinion and that his opinion is designed to help the respondent reach a correct assessment and decision about the applicant’s claim. Similarly, a considered expert opinion assists the tribunal in its review. Mr Phillips also queried Dr Silva’s testimony about the scans he had seen in connection with his reports and in giving oral evidence about his conclusions.

26.      The respondent made further written submissions dealing with Mr Phillips’ complaints on 22 January 2007. These submissions addressed a number of points which we think unnecessary to repeat here but we note that Dr Silva gave evidence that he preferred to use the term ‘TC scan’ to ‘CT scan’ for certain of the scans he referred to in his evidence. He explained that the term ‘TC scan’ was short for ‘technetium scan’ and Mr Phillips may have misheard this evidence. Dr Silva’s curriculum vitae attached to the written submission supported the evidence given by him at the hearing concerning his qualifications in the UK and in Ceylon and his suitability to practice in NSW. We do not doubt that Dr Silva is a well respected orthopaedic surgeon entitled to practice as such in NSW.  

27.      Despite the plethora of medical evidence to the contrary, Mr Phillips continued to distinguish the condition resulting from his injury from the condition diagnosed by medical practitioners and specialists who have examined him. Mr Phillips believes he is suffering from ‘enthesopathies’ and that the Commission has never accepted liability for this injury. As Dr Silva explained, enthesopathy is not an injury as such but part of the healing process after an injury. We find that no error has been made in the description of Mr Phillips’ accepted injury and that no new injury of enthesopathy has arisen since.

28. We consider that Mr Phillips does continue to suffer some minor degree of impairment from the injury for which the Commission accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), that is, ‘thoracic spine sprain’. However, we find that the medical evidence overwhelmingly supports the finding that Mr Phillips is not incapacitated for work as a result of his injury.

29.      It follows that the respondent is not liable to pay compensation for any incapacity for work suffered as a result of the accepted condition pursuant to Division 3 of Part II of the SRC Act. For completeness, we add our finding that, on the material before us, there is no other basis for Mr Phillips to receive compensation from the respondent for any incapacity for work.

Decision

30.      The decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of SM Hunt

[Sgd]: Associate

Date/s of Hearing  10 & 11 January 2007
Date of Decision  13 February 2007
Solicitor for the Applicant          Self represented
Solicitor for the Respondent     DLA Phillips Fox