QX06/02 and Military Rehabilitation and Compensation Commission
[2006] AATA 275
•24 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 275
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2004/979 & Q2005/773
VETERANS’ APPEALS DIVISION ) Re QX06/02 Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member
Dr G Maynard, Member
Date24 March 2006
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
...........[Sgd].......
RG Kenny
Member
CATCHWORDS
WORKERS COMPENSATION – liability accepted for fracture lower right fibular, dislocated right ankle, right knee injury and lumbar spine injury – claim for medical treatment – reconsideration of own motion by respondent in relation to lumbar spine injury – change of diagnosis to aggravation of pre-existing constitutional lumbar degenerative disc disease – resolution of symptoms – medical treatment not available for back condition.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16.
REASONS FOR DECISION
24 March 2006 Mr RG Kenny, Member Dr G Maynard, Member Background
1. The applicant was born on 23 August 1956. He served in the Australian Army from July 1974 until June 1989. The applicant sustained an injury to his right ankle in a night parachute jump on 15 September 1988. He lodged a claim under the Safety, Rehabilitation and Compensation Act 1988 and this resulted, on 28 March 1989, in acceptance of liability by the Military Rehabilitation and Compensation Service (the respondent) for compensation and medical treatment of a condition described as “fracture lower right fibula and dislocated right ankle”. On 27 June 1990, the respondent also accepted liability for a “right knee injury” rising out of the same incident. On 29 October 1997, the respondent accepted liability for a lumbar spine injury on the basis that it was an injury which arose as a sequela to his right knee condition. In his claim for that condition, the applicant implicated a fall, on 1 October 1997, which was a consequence of his right knee instability.
2. In letters to the respondent in March and July 2004, the applicant explained that he was to undergo a surgical procedure on his ankle in approximately August 2004 and that, from past experience, he expected that this would impact negatively on his back condition. He foreshadowed the need for continuing physiotherapy, in the form of massage and acupuncture treatment for his back, during the period of recuperation after the ankle operation. The applicant also explained that due to the location of his place of residence the arrangements for physiotherapy on the mainland were inappropriate because of the cost of and the physical difficulties associated with travelling to and from his residence. He also advised that there was a massage therapist who resides in his area and who would be able to provide services in a more effective manner than by having him travel to the mainland. In a determination dated 28 July 2004 and a reviewable decision dated 11 November 2004, the respondent authorised a visit to the applicant’s residence of a mobile physiotherapist once a week for a period of one month after the surgical procedure on the applicant’s right ankle. The respondent also authorised the applicant was to receive further physiotherapy treatment on a weekly basis on the mainland. On 23 December 2004, the applicant sought review by the Administrative Appeals Tribunal (the Tribunal) of that decision.
3. On 14 October 2005, the respondent made a further decision in relation to the applicant’s back condition. This was a reconsideration of own motion by the respondent in the light of further medical evidence. The respondent varied the original diagnosis from “lumbar spine injury” to “aggravation of pre-existing constitutional lumbar degenerative disc disease”. It also determined that the effects of that condition were temporary in nature and that the symptoms of the back injury sustained in the fall in October 1997 had disappeared with the passage of 12 months from the date of the fall. Accordingly, it was determined that the applicant did not suffer from the effects of his back injury after 1 October 1998 and that, after that time, any back problems that the applicant had were related to his non-compensable pre-existing constitutional lumbar degenerative disc disease. As a result, it was determined that the respondent was not liable to provide medical treatment for the applicant’s back condition after that date. On 28 November 2005, the applicant sought review of that decision by the Tribunal.
Hearing
4. At the hearing, the applicant was not represented. The respondent was represented by Mr C Clark of counsel. The evidence before the Tribunal included two sets of documents prepared under section 37 of the Administrative Appeals Tribunal Act1975.
Issues and Legislation
5. Section 14 of the Act provides that the respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or in impairment. The term “injury” is defined in sub-section 4(1) of the Act to include a “disease” and, in turn, that term is defined to include any ailment or aggravation of any such ailment contributed to in a material degree by the person’s employment. Compensation for medical expenses is provided for in section 16 of the Act and it includes treatment that it is reasonable for the employee to obtain in his/her circumstances. It also includes, in nominated situations, expenditure reasonably incurred in making a necessary journey for the purpose of obtaining that medical treatment.
6. The first of the decisions under review relates to whether or not the applicant is able to receive treatment for his back condition which, initially, was simply described as a “lower back injury”. As a result of the second decision under review, the respondent redefined the condition as an “aggravation of a pre-existing condition” with compensation for that condition not payable from 1 October 1998. It follows that, if the Tribunal is satisfied that the latter decision is correct and proper in accordance with the terms of the Act, the former decision relating to treatment for the back condition will have to be affirmed. If, on the other hand, the latter decision was not correct and proper under the Act, consideration must then be given to the issue of the treatment requested by the applicant for his back condition.
Applicants case
7. The applicant contended that he continues to suffer from back pain. He referred to a medical report dated 15 March 2004 from Dr Bevan Bouer, his treating doctor, who completed a certificate of incapacity for work for the period 15 March 2004 until 15 May 2004 in which he stated that this was because of the applicant’s “chronic back and lower limb pain”. The applicant also referred to reports by physiotherapist, Jon Dearness, including that dated 21 January 2003, where Mr Dearness advised that he was treating the applicant’s episodic acute lower back pain and muscle spasm on top of chronic degenerative disc as well as lower limb function.
8. In his initial claim, the applicant attributed his back pain to the fall he had in 1997. At the hearing, he advanced other bases for his back problem. The applicant said that he had complained of injury to his back in 1988. In evidence was a medical attendance and treatment report, dated 14 September 1988, which noted a “pulled muscle in back this morning embarking on plane”. The applicant considered that he may have injured his back then and, because he had his parachute accident shortly thereafter and was immobilised for a long period, he may well have injured his back again during the fall without being conscious of it. Another contention put forward by the applicant was that his altered gait and difficulties associated with his lower limb were such that the mechanical effect of this would result in the problems with his lower back.
Medical Evidence
9. At the time of his fall in 1997, the applicant’s treating doctor was Dr Bill Collyer. In a report, dated 22 April 1998, he described the fall on 1 October 1997 and wrote that, on 3 October 1997, he diagnosed degenerative lumbar disc causing back derangement and referred the applicant for orthopaedic opinion from Dr William Ryan. There was no material from Dr Ryan before the Tribunal but the applicant agreed that Dr Ryan had recommended that he attend a multi-disciplinary back care program. In his evidence, the applicant said that he had spoken to a psychologist who would be involved in the program and was advised that the program was not really suited to his circumstances and, as a result, he did not attend it.
10. Dr Gillett, orthopaedic surgeon, treated the applicant for his knee condition but he also provided a report, dated 9 April 1998, in relation to his back condition. He described internal disc derangement of the lumbo sacral spine and he considered that this was permanent.
11. Dr S Yang, from Health Services Australia (HSA), provided a report dated 17 October 2000 in which he also described the applicant’s back condition as being permanent. Again, Dr Yang took a history from the applicant of his back problems and recorded him as describing a history of back pain occurring in 1999 when he was lifting a case during a work trial with a computer company. At that time, he was off work for some months while he had physiotherapy. Dr Yang stated that, after that injury, the applicant indicated that he always had some “niggling back pain” depending on what activities he performed. Dr Yang noted that a multi-disciplinary back care program had been recommended for the applicant in 1997 and that the applicant declined to attend this. Dr Yang also wrote that, after the October 1997 fall, the applicant’s pain settled somewhat such that he was able to return to full time work for a computer company. In his evidence, the applicant was unable to indicate how long he was off work but agreed that he was back at work within a year.
12. Dr David Hilford, in a report dated 30 November 2002, described the applicant as having a permanent impairment and opined that this developed after October 1997. In taking a history from the applicant of his back problems, he recorded him as relating that he had experienced lower back pain from 1991 onwards. Dr Hilford referred to the fall in October 1997 and to the applicant as being diagnosed at that time with degenerative lumbar disc disease. He described another injury to the back in December 1999 which required hospital treatment.
13. An MRI scan was conducted on the applicant’s lumbar spine on 6 December 1999. It described a “minimal bulge of the L4-L5 disc” but concluded that there was “disc degeneration as evidenced by marked reduction in signal on T2 scans from all the discs from L2 to S1”. In his evidence, Dr Boys, orthopaedic surgeon, referred to the MRI and said that this revealed that the applicant suffered from degeneration throughout the whole of his spine. He said that this was significant because it was not consistent with an isolated event or injury. He said that the applicant described to him a history of back problems since 1991. He expressed the opinion that the applicant appeared to have aggravated mechanical lower back pain when he fell in October 1997. He also noted a further episode of lower back strain in 1999. Dr Boys said that the effects of any injury that occurred to the applicant in October 1997 would have settled within three to six months. He said that, when the discs become degenerative in the spine, they can cause symptoms from time to time. He noted the reference to L4-L5 disc in the MRI and said that there was a narrowing of the disc which was associated with degeneration. Dr Boys was also referred to the injury described in the applicant’s service medical records from 14 September 1988 and he said that it was suggestive of a soft tissue injury which would settle quickly. Dr Boys noted the history of massage and acupuncture treatment the applicant has undergone and expressed the opinion that these would not give rise to any permanent relief of symptoms or alter the natural history of his degenerative back condition. He also dismissed a suggestion that the applicant’s back condition may be causally associated with any effects on the applicant’s gait which were related to his lower limb conditions.
14. Dr Terence Saxby, orthopaedic surgeon, gave evidence but was not able to assist the Tribunal in relation to the condition of the applicant’s back because his association with him was in relation to lower limbs only. However, Dr Saxby expressed the opinion that the effects of the applicant’s gait would not cause him to develop a problem with his spine.
15. On 15 September 2000, Mr Dearness wrote that the applicant had recurrent acute episodes of lumbar spine pain and spasm from October 1997. He said that these occurred approximately four to five times per year and that, between those episodes, he has lumbar ache after prolonged sitting or standing.
Consideration
16. The Tribunal has noted the applicant’s contention that a reference in his service medical documents on 14 September 1988 may implicate his employment as being causative of a back problem from that time onwards. The Tribunal does not accept that contention which is unsupported by medical evidence. The opinion of Dr Boys was that, from the description in the record, it would have quickly settled. Also, the September 1988 an entry referred to an examination which revealed a full range of movement, described the applicant as being fit for full duty and fit to “jump” on the following day. Further, in evidence were medical reports completed at the time of the applicant’s discharge from the Army and, although he is noted to have some abnormalities in his lower extremities, his back was recorded as being “normal” on 15 June 1989. In a further report of that date, the applicant declared that he had not ever had and was not suffering from a back injury though he did note that he had received an injury to his ankle and knee.
17. The Tribunal also noted the applicant’s contention that his back condition may have developed as a result of the mechanical imbalance brought about by his limping gait associated with his lower limb conditions. Both Dr Saxby and Dr Boys rejected that contention and the Tribunal is satisfied that this causal association is not established. In any event, liability was accepted for the back condition and the matter for determination is whether he continues to have incapacity or impairment from the condition now described as “aggravation of pre-existing constitutional lumbar degenerative disc disease”.
18. There is evidence that the applicant has a permanent impairment in his spine and this was referred to in various reports noted above. However, the evidence of Dr Boys, in reliance upon the MRI reports, was that this is a degeneration in all of the applicant’s spine and that a spine in that degenerated state becomes symptomatic from time to time. He considered that this is what occurred in the applicant’s case with each presentation of symptoms constituting an aggravation of the underlying degenerative condition which then resolves. That is also the evidence of Mr Dearness. In this case, the Tribunal is satisfied that that is what happened in the case of the applicant and that he experienced an aggravation in the fall in October 1997. This had previously occurred to him in 1991 and it occurred again in 1999.
19. The Tribunal is not able to determine a date when it could be said that the temporary effects of the aggravation in 1997 had been completed. The applicant said that he was able to return to work within a year and, in the reviewable decision on 14 October 2005, a period of 12 months was set as the relevant time frame. The Tribunal is satisfied that this represents a reasonable time frame of operation of the effects of the temporary aggravation and, for that reason, it affirms that reviewable decision.
20. As the compensable condition had resolved by October 1998, this means that compensation in the form of reimbursement for medical treatment is not payable to the applicant for his back condition and it follows that the reviewable decision from 11 November 2004 is also affirmed.
Decision
21. The Tribunal affirms the decisions under review.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 23 February 2006
Date of Decision 24 March 2006
The Applicant was unrepresented.
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Dibbs Abbott Stillman
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