RODNEY CROOKES and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2009] AATA 318
•7 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 318
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4516, 5102;
VETERANS' APPEALS DIVISION ) 2008/3127 Re RODNEY CROOKES Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date7 May 2009
PlaceBrisbane
Decision In each of 2007/4516, 2007/5102 and 2008/ 3127 the Tribunal affirms the decisions under review.
.............Signed.................
Deputy President
CATCHWORDS
COMPENSATION – permanent impairment by reason of accepted lower back injury, headaches condition and subsequent back injury – claim of subsequent injury not substantiated by evidence – claim of permanent impairment by reason of accepted back injury equates impairment with incapacity – argument rejected – no medical evidence that subsequent permanent loss was qualitatively and quantitatively a different impairment – headaches a symptom of other (accepted) disorders – not a separate injury – insufficient evidence to accept that the symptoms amount to an assessment of 10% whole person impairment – the three decisions under review are affirmed.
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 24, 28(1), 53, 124(3)
Canute v Comcare (2006) 226 CLR 535
Comcare v Levett (1995) 60 FCR 14
Comcare v Maida (2002) 36 AAR 69
Comcare v Mathieson (2004) 39 AAR 450
Department of Defence v West (1998) 85 FCR 491
Fuad v Telstra Corporation Ltd (2004) 39 AAR 496
REASONS FOR DECISION
7 May 2009 Deputy President P E Hack SC Introduction
1.Mr Rodney Crookes served in the Army Reserve between 1979 and 1982 and again from 1983 until a medical discharge in July 1994. In May 1986 Mr Crookes injured his back whilst engaged in a Reserve exercise.
2.In these proceedings Mr Crookes seeks review of decisions made by the respondent, the Military Rehabilitation and Compensation Commission, regarding his entitlement to compensation for injuries said to have been occasioned by Mr Crookes’ service.
Background
3.I start with some uncontroversial background. Mr Crookes first enlisted in 1979 at the age of 19. In May 1986 he injured his back whilst on exercise with the Reserves. He was admitted to an Army field hospital for some days but was discharged at the conclusion of the exercise.
4.In August 1993 Mr Crookes lodged a claim for compensation for an injury described as “lower back, left side sciatica”. The Commission made a determination on 16 February 1994 that accepted liability for the injury “Back Lumbar Lower, Left Side Sciatica”. The date of injury was taken to be 8 May 1986.
5.Subsequently Mr Crookes developed a psychiatric condition. The Commission made a determination on 14 October 2003 that accepted liability for major depressive disorder. The date of injury was determined to be 20 September 1996, that being the date when Mr Crookes first sought medical treatment for the condition.
Procedural history
6.There are three applications before the Tribunal. They concern Mr Crookes’ claim for compensation for permanent impairment by reason of his accepted back injury (Application 2007/4516), the claim for the “headaches” condition (Application 2007/5102) and the claim of an injury in September/October 1992 (Application 2008/3127). It is necessary to consider the procedural history of each application.
Application 2007/4516
7.By letter dated 14 September 2006 solicitors acting for Mr Crookes requested a reassessment of his accepted back injury condition. It was suggested, by reference to a medical report of Dr Brian Purssey, an orthopaedic surgeon, that Mr Crookes ought be assessed as having a 10% whole person impairment under Table 9.5 of the Guide[1] and 10% under Table 9.6.
[1]Guide to the assessment of the degree of permanent impairment (the Guide).
8.The Military Compensation and Rehabilitation Service (MCRS) responded to the claim for permanent impairment to the back by letter dated 24 January 2007. That letter pointed out that liability for the back condition had been accepted under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) and that there was no provision under the 1971 Act for lump sum payments for back injuries. There was, however, provision for such payments under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act). The consequence was, it was said:
“To be eligible for assessment under [the 1988 Act] you would need to have re-injured or aggravated your accepted back condition which would have caused a new impairment post 1 December 1988, the date from which the [1988 Act] applies.”
Mr Crookes was invited to provide medical evidence to support a claim to have the condition assessed under the 1988 Act.
9.On 2 February 2007 the solicitors for Mr Crookes responded to that invitation by referring to aspects of Dr Purssey’s report.
10.On 16 March 2007 a delegate of the Commission determined that no lump sum payment for permanent impairment could be made under the transitional provisions of s 124 of the 1988 Act for the accepted back condition. Reconsideration of this determination was sought by Mr Crookes’ solicitors by letter dated 29 March 2007.
11.On 27 August 2007 the Commission affirmed on reconsideration its determination of 16 March 2007 that Mr Crookes was not entitled to lump sum compensation for his back condition. The application for review that decision was lodged in the Tribunal on 18 September 2007.
Application 2007/5102
12.On 23 November 2006 Mr Crookes’ solicitors lodged further claims for compensation for conditions described as “headaches injury” and “sexual dysfunction”. The accompanying correspondence made it plain that what was being sought was an acceptance of liability for the condition and a determination for entitlement to compensation for permanent impairment. The letters setting out the claims were accompanied by a report of Dr Christopher Slack, a consultant psychiatrist, dated 5 October 2006. MCRS acknowledged receipt of those claims on 21 December 2006.
13.It is next relevant to note that by letter dated 15 March 2007 MCRS invited Mr Crookes to complete a Non-Economic Loss Questionnaire in for it to determine entitlement to lump sum payment for permanent impairment for the major depressive disorder condition. I infer that Dr Slack’s report, and the references in it to permanent impairment, prompted the letter. In any event the questionnaire was completed and returned on behalf of Mr Crookes on 28 March 2007.
14.On 5 April 2007 the Commission made an offer to Mr Crookes of compensation for permanent impairment for major depressive disorder. The offer was made on the basis of a determination that the degree of impairment was 10% under Table 5.1 of the Guide. In determining the amount of compensation payable under s 27 of the 1988 Act for non-economic loss Mr Crookes’ responses to the questionnaire that related to his headaches were apparently disregarded as,
“chronic headaches [are] currently being investigated as a secondary condition to your accepted major depressive disorder”.
15.The offer of 5 April 2007 was the subject of a determination made by the Commission on 10 April 2007 that Mr Crookes had suffered a whole person impairment as a result of the compensable injury major depression and that the degree of impairment was 10% under Table 5.1 of the Guide. So far as I can tell Mr Crookes did not seek reconsideration of this determination.
16.On 7 June 2007 the Commission made two determinations in relation to the claimed headaches condition. It determined that there was no liability to pay compensation for the headaches because they were “a symptom of … major depressive disorder and a reflection of lifestyle pressures and stresses”. By a separate letter of that date it was determined that Mr Crookes was not entitled to compensation under ss 24 and 27 of the 1988 Act as he “[did] not suffer an impairment as a result of … tension headaches under Table 13.1”.
17.The Commission was asked to reconsider these determinations by letters dated 29 June 2007 and 25 July 2007. It affirmed its determinations of 7 June 2007 in relation to the headaches condition on 11 October 2007. Application to review those decisions was lodged on 23 October 2007.
Application 2008/3127
18.By letter dated 8 April 2008 Mr Crookes’ solicitors requested the Commission to,
“extend liability to include a further injury suffered by our client whilst on annual field exercise. The exercise was from 19 September 1992 to 4 October 1992. As our client details in his enclosed statement (dated 9 October 2007) he suffered severe lower back pain when required to lift a field radio. Our client sought treatment from his General Practitioner in early November 1992.”
19.That claim was rejected by the Commission by letter dated 17 April 2008 on the basis that Mr Crookes has not complied with the requirement of the 1988 Act to give timely notice of the injury. The determination was affirmed on reconsideration on 30 June 2008 and the application to review lodged on 11 July 2008.
The legislation
20.It is unnecessary to do more than briefly mention the legislation. By a combination of s 14 and s 147 of the 1988 Act the Commission is liable to pay compensation in accordance with the 1988 Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. Section 24(1) creates a liability to pay compensation, determined by reference to seceding sub-sections of s 24, where an injury “results in a permanent impairment”. So far as is presently relevant, s 24 of the 1988 Act, contained within Division 4, is in these terms:
“(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)…
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A)…
(8)…
(9)For the purposes of this section, the maximum amount is $80,000.”
21.As can be seen, the amount of compensation payable is determined by reference to the degree of permanent impairment as calculated by the Commission (or the Tribunal in its stead) as a percentage, and that calculation is to be undertaken by reference to the Guide.
22.It is now necessary to have regard to the definition of “injury” in s 4 of the 1988 Act. That definition, at the material time[2], was in these terms:
[2] The definitions of the terms “injury” and “disease” were amended in minor respects by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 but the earlier definitions of those terms continue to apply to injuries sustained prior to 12 April 2007.
“(1)In this Act, unless the contrary intention appears:
…
injury means:(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…”
23.In the circumstances of the present case it is useful to bear in mind what was said by the High Court in Canute v Comcare[3] about the notion of “injury”:
“[10] At this juncture, three things may be observed about the concept of ‘an injury’. First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of ‘the injury’. Secondly, the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury’. The use in s 24(1) of the indefinite article in the expression ‘an injury’ reinforces that conclusion.” [footnotes omitted]
[3] (2006) 226 CLR 535, 540 at [10].
24.The expression “impairment” is defined in s 4 of the 1988 Act as meaning:
“the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
The same section defines “permanent” as “likely to continue indefinitely”. For the purposes of determining whether an impairment is permanent it is necessary to have regard to the matters specified in s 24(2) of the 1988 Act.
25.Content is given to the expression “the degree of permanent impairment of the employee” by reference to the Guide. The Guide is subordinate legislation. Section 28(1) of the 1988 Act deals with the content of the Guide in terms of establishing criteria for permanent impairment and non-economic loss of an employee, and the methods of expressing this impairment and loss as a percentage.
26.It is necessary also to have regard to the transitional provisions in s 124 of the 1988 Act. That Act allowed lump sum compensation for all forms of permanent impairment for the first time. Under the 1971 Act a lump sum could only be awarded for certain specified impairment which did not include any of the conditions for which Mr Crookes claims. By virtue of s 124(2) of the 1988 Act Mr Crookes is entitled to compensation under the 1988 Act in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was payable, or would have been payable, under the 1971 Act. Mr Crookes is not entitled to compensation under s 24 of the 1988 Act in respect of a permanent impairment occurring before 1 December 1988 if he was not entitled to receive compensation of a lump sum for that impairment under the 1971 Act[4].
[4] See s 124(3)(b)(iii) of the 1988 Act.
27.Finally, regard need be had to the requirement of s 53 of the 1988 Act to give notice of the injury. By virtue of s 53(1) of the 1988 Act, the Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given as soon as practicable after the employee becomes aware of the injury. The strict effect of that sub-section can be abated under s 53(3) of the 1988 Act which provides:
“(3)Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.”
The case for Mr Crookes
28.Mr Crookes’ case in 2007/4516 was put in alternative ways by his counsel, Ms Scott-McKenzie. Recognizing the difficulties of s 124(3) of the 1988 Act the case was put first on the basis that Mr Crookes had not been entitled to compensation under the 1971 Act because, while there may have been an injury as defined, there was, it was said, no impairment. It was said that where there is no evidence of loss of function there can be no impairment or no permanent impairment. Reliance was placed upon the decision in Comcare v Levett[5].
[5] (1995) 60 FCR 14.
29.The alternative formulation was that, on the evidence I would be satisfied that there had been a change in the underlying patho-physological condition and a qualitative change to the impairment such that a new impairment had developed. Decisions such as Department of Defence v West[6] and Comcare v Mathieson[7] were relied upon.
[6] (1998) 85 FCR 491.
[7] (2004) 39 AAR 450.
30.In either case it was said that Mr Crookes had a permanent impairment that warranted an assessment of 10% whole person impairment on each of Tables 9.5 and 9.6 of the Guide.
31.In Application 2007/5102 the contention was that the headaches said to have been suffered by Mr Crookes were a consequence of the chronic pain that was part of his accepted back injury or the consequence of his depressive disorder or both. The notion that the headaches constituted an injury (rather than being merely the result of another condition) was pressed, although, as I understood the argument, it was said that, even absent an acceptance of liability to pay compensation for the “headaches condition”, Mr Crookes’ headaches constituted a permanent impairment representing a 10% whole person impairment by reference to Table 13.1 of the Guide.
32.Application 2008/3127 was put as an alternative to Application 2007/4516. It was said that it was only if Mr Crookes failed in Application 2007/4516 that it would be necessary to consider Application 2008/3127. It was put that the evidence permitted a finding that Mr Crookes had sustained a separate injury in 1992 which had resulted in permanent impairment warranting an assessment of 10% whole person impairment on each of Tables 9.5 and 9.6 of the Guide.
Reasoning
2008/3127
33.Despite the case for Mr Crookes being put on the footing that the case propounded in Application 2008/3127 was an alternative to that propounded in Application 2007/4516 it seems to me to be necessary to determine the former application first since it is dependent upon an asserted state of facts, namely that Mr Crookes injured his back again when carrying a heavy radio in an exercise in September/October 1992. If that be right, there was a separate event by which his back was injured. Logic dictates that I should first find the facts. Thus I propose to consider this application first.
34.Mr Crookes’ claim in these proceedings is based upon his evidence[8] that he sustained an injury to his back during the course of annual field exercise in September and October 1992. He was, he says, the Signal Sergeant in an undermanned signals platoon and required to carry a pack and equipment weighing approximately 80 to 100 kilograms a considerable distance over uneven terrain. He says that he has a:
“recollection of incidences of severe lower back pain which first occurred whilst bending with my combat pack on and continued when the pack was removed but considered it at the time as an aggravation of my existing injury, which would subside with rest. Pain was controlled by self medication with analgesics and NSAID (Oridus). I gave no thought at that time, to the possibility of a further injury, although the pain seemed to be in the usual region, as well as a little higher. These incidents were not reported because the Army Reserve service was a much needed source of additional income for my family, and at the time I considered the pain as an aggravation and an occupational hazard.
I was previously ill advised by my superiors on matters relating to my back injury. On several occasions, I was threatened with discharge and shown little to no concern at all. There were no genuine offers of assistance given, or help in sourcing medical intervention. This made me very hesitant to report any further back pain, or to initially seek treatment, as I feared the loss of this much needed income.”
[8] Exhibit 3, page 408.
35.Mr Crookes’ statement refers to seeking medical treatment for this injury from his general practitioner, Dr Mackay, in early November 1992.
36.Subsequently Mr Crookes provided a further statement[9] in which he nominates 23 September 1992, which was the fifth day of the exercise, as the day on which he can recollect the sudden onset of severe lower back pain whilst bending over with a combat pack and radio on his back.
[9] Exhibit 9.
37.Mr Crookes’ spouse, Mrs Joanne Crookes, says that she is able to recall that Mr Crookes returned from the September/October 1992 exercise complaining of back pain that he attributed to the weight of his pack and having to carry batteries.
38.It is a remarkable feature of this aspect of Mr Crookes’ case that the first mention made by Mr Crookes of these events came in his statement dated 9 October 2007. That statement was provided to MCRS under cover of the letter from Mr Crookes’ solicitors dated 8 April 2008[10]. Mr Clark, counsel for the Commission, submitted that the absence of any reference to these events prior to then was of great significance in determining whether Mr Crookes’ account of events in 1992 could be accepted.
[10] See paragraph [18] above.
39.That submission needs to be considered in the context of the opportunities that Mr Crookes had to complain of the events and the apparent affect upon his back.
40.Because no complaint was made at the time there are, of course, no Army records of the event or of any medical treatment. Mr Crookes’ statement suggests that he sought medical treatment from Dr Mackay in November 1992. Her report of 1 June 1993[11] indicates that Mr Crookes presented to her surgery in May 1992 complaining of back pain with sciatica “that had first started 7 years before”. He was referred for physiotherapy. The report continues:
“In November 92 he returned with lumbar-sacral back pain. On this occasion he was tender around L4 – L5 and straight leg raising on the left was limited to 70 degrees. He was given treatment with interferential current in our surgery on 3 occasions, prescribed Orudis again and swimming was suggested. He obtained minimal relief but admitted his pain got worse after gardening at the weekend”.
[11] Exhibit 3, page 87.
There was a subsequent attendance in April 1993 where Mr Crookes reported “no obvious percipients except chasing his daughter”. Dr Mackay made no reference to any event of September 1992 causing, or aggravating, an injury.
41.In August 1993, that is, less than 12 months after any incident of September 1993. Mr Crookes lodged his claim for compensation for loser back pain and sciatica. The claim was accompanied by a detailed statement signed by Mr Crookes setting out the circumstances in which the May 1986 injury occurred and the events thereafter. There is no reference in either the claim or the statement to any event in September 1992 causing a separate injury or aggravating an existing one.
42.In connection with the claim Mr Crookes was sent by Dr Laister, an orthopaedic surgeon, in October 1993. There is no reference to any event of September 1992 in the history recorded. There is similarly no reference to the event in the report of Dr Morgan, another orthopaedic surgeon, of June 2005. Mr Crookes was sent by his solicitors to see Dr Purssey, a surgeon, in September 2006. The history recorded by that doctor includes reference to Mr Crookes having to carry a radio and other equipment up to 80-100kg in weight on field exercises but no date is given for this nor is Mr Crookes recorded as complaining of any occasion where he had experienced a sudden onset of severe lower back pain whilst bending over with such a load on his back.
43.In November 2007, that is, after Mr Crookes had produced his statement of October 2007 but before it had been provided to the Commission, he saw Dr Hugh English at the behest of the Commission. The history recorded by Dr English notes that Mr Crookes described an event when required to carry a radio and full kit weighing 100-110kgs. The report continues:
“After an exercise in 1993 he experienced a recurrence of lower back pain”.
44.In the course of cross-examination Mr Crookes agreed that his back took a turn for the worse in 1992. He explained that he had not told Dr Morgan of the events of 1992 because, he said, that doctor had cut him short and did not give him a chance to provide any detail. Mr Crookes said, quite unconvincingly I thought, that he had told Dr Laister and Dr Purssey of the September 1992 events.
45.Despite the evidence of Mr Crookes regarding the September 1992 event and that of his wife regarding the complaint said to have been made after his return from the field exercise I am not satisfied that any such event as described by Mr Crookes took place. It defies belief that Mr Crookes could have experienced a sudden onset of severe pain in the circumstances described by him and yet not report it at the time, not make any reference to it in a detailed statement prepared less than 12 months later, not make any reference to it when examined by an orthopaedic surgeon in October 1993 and not make any reference to it when examined by an orthopaedic surgeon in September 2006. Moreover Mr Crookes would have me accept that on the occasions that he did mention this event, Dr Morgan was disinterested in obtaining a full history and Dr Laister and Dr Purssey did record this part of the history.
46.Dr Morgan’s evidence was that his usual practice was to permit persons seen by him for medico-legal purposes to give a detailed, and uninterrupted, history. He was confident, as I am, that he would not have dissuaded Mr Crookes from telling him about matters from 1992. Moreover logic, without more, suggests that Dr Morgan, and the other doctors who examined Mr Crookes, would have wanted to ascertain a full history of Mr Crookes’ back problems. Mr Crookes failure to provide such a history in the medical examinations by Drs Mackay, Laister, Morgan, and Purssey, his failure to refer to such a history in the detailed statement supporting his claim made in August 1993 and his failure to mention this incident when, on 16 April 2007, he provided a letter to his solicitors to be forwarded to the Commission in support of his application for reconsideration leads me to reject his evidence that the events of September 1992 occurred as he claimed.
47.The Commission rejected Mr Crookes’ claim for lump sum compensation for his back in August 2007 on the basis that:
“there has not been a new permanent impairment since 1 December 1988.”
A little more than a month later Mr Crookes produced a statement which asserted for the first time, that his condition was attributable to a separate event since 1 December 1988. Mr Crookes’ explanations for this sudden recollection are entirely unconvincing. It is unnecessary for me to say more than that I reject his evidence regarding the claimed event of September 1992 and, necessarily, that of Mrs Crookes of a recollection of him making a complaint after the exercise of that year.
48.It follows that I would affirm the decision in application 2008/3127 on the second basis relied upon by the Commission’s delegate, that is, a failure to establish that any back injury resulted from the claimed events of September 1992. I have not found it necessary to consider the operation of s 53(3) of the 1988 Act. I observe that, had it been necessary for me to consider the matter, I would not have regarded Mr Crookes as having demonstrated any “reasonable cause” for his failure to give timely notice.
2007/4516
49.Given the reliance upon Comcare v Levett[12] it is as well to start by examining what was decided in that case. There, the Tribunal had found that Mr Levett had injured his back prior to 1 December 1988 resulting in an impairment but that that impairment had become permanent after that date. In this context the Court held that[13]:
“The operation of s 24 of the 1988 Act is limited by s 124(3), properly construed, only when a permanent impairment occurred before the 1988 Act came into force.”
[12] (1995) 60 FCR 14
[13] 60 FCR at p. 19.
50.The argument advanced here is that where there is no evidence that Mr Crookes experienced a loss of function prior to 1 December 1988 there can be no impairment or no permanent impairment. That contention focuses attention on what is meant by impairment.
51.The statutory definition has already been noted. With that in mind it is necessary to consider the medical evidence. Dr Morgan, having described Mr Crookes’ symptoms, and the events of May 1986 says:
“This symptom complex suggests that he may have deranged one or more of his lower lumbar intervertebral discs. A CT scan examination performed seven years later has demonstrated bulging at the L5 – S1 level.”
Dr Purssey was of a similar view. Dr English expressed the opinion that Mr Crookes “sustained a lumbar disc protrusion on 8 May 1986”.
52.Given this evidence I am satisfied that in May 1986 Mr Crookes suffered an injury that resulted in an impairment constituted by the disruption of the L5 – S1 lumbar disc. Moreover, as Dr Morgan put it, that disruption was an irreversible event though its true effects did not become apparent until later. Dr English expressed a similar opinion.
53.There is no medical evidence to the contrary; the argument, as I understood it, was advanced on the basis that Mr Crookes’ injury could not have resulted in permanent impairment in May 1986 because he was able to resume full time duties after six weeks of physiotherapy following the May 1986 incident and because he was able to satisfy a medical examination for overseas service in May 1988.
54.That argument equates impairment with incapacity and I reject it. The medical evidence satisfies me that Mr Crookes’ impairment was permanent. It was irreversible and unlikely to improve. It is right to say that Mr Crookes might experience some relief in his symptoms and equally might get worse over time but that does not detract from the conclusion that his impairment was permanent.
55.It follows that I do not accept the first basis upon which the case for Mr Crookes was advanced.
56.The alternative basis on which it was advanced was that Mr Crookes’ back condition worsened after 1 December 1988 in such a way as to enable it to be characterised as a different impairment.
57.Both parties referred to the considerable jurisprudence on this topic. It will suffice for present purposes to make reference to the decision of Weinberg J in Comcare v Mathieson[14] where his Honour considered the earlier authorities including Department of Defence v West[15] and Comcare v Maida[16]. The headnote in Mathieson expresses the holding by Weinberg J, correctly in my view, in these terms:
“The test for determining whether an applicant is entitled to receive [a] lump sum as compensation under the Safety, Rehabilitation and Compensation Act for permanent impairment where such person was so impaired prior to the commencement of that Act is if the subsequent permanent loss was both qualitatively and quantitatively a different impairment and not a progression of a disease or a gradual worsening of the degree of an impairment without the identifiable change in the underlying patho-physiological condition.”
[14] (2004) 39 AAR 450.
[15] (1998) 85 FCR 491.
[16] (2002) 36 AAR 69.
58.Earlier, in Comcare v Maida[17] Mansfield J summarised the effect of the authorities in these terms:
“In effect, in this matter, the applicant puts the following propositions which, in my view, correctly summarise the state of the law:
20.1 The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
20.2 If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
20.3 A significant worsening of an impairment may constitute a new or distinct impairment, but only if there had been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment – that is, the development of a new impairment.”
[17] 36 AAR at 79-80 [28].
59.As it seems to me, there is no evidence of any change in the underlying condition. Dr English, for example, said that no further structural injury has occurred since the events of May 1986. He attributed the worsening of symptom experienced by Mr Crookes to the natural process of degeneration. Dr Purssey was of a similar view in relation to the worsening, describing it as largely associated with ageing. Dr Morgan had no different view.
60.The medical evidence then leaves me unpersuaded that Mr Crookes’ present impairment is such as would amount to an impairment that is new or distinct from the impairment from the events of May 1986. The likelihood is that the present condition is no more than a gradual worsening compounded by the process of ageing.
61.As I have rejected both bases upon which Mr Crookes seeks a review of the Commission’s decision regarding permanent impairment to his back I would affirm the Commission’s decision subject of these proceedings.
2007/5102
62.Mr Crookes’ case in these proceedings was also put on alternative bases – that Mr Crookes’ headaches constituted an injury which results in permanent impairment or alternatively that the headaches are a symptom of an accepted injury that has caused permanent impairment.
63.The first formulation of the case can be readily disposed of. Dr Alison Reid, a consultant neurologist, says of Mr Crookes’ headaches that they,
“… do not represent a stand alone condition, nor do they represent a secondary condition. They are an intrinsic part of his psychiatric disorder.”
In her evidence before me Dr Reid agreed that headaches were a consequence and a symptom of major depressive disorder.
64.Dr Christopher Slack, a consultant psychiatrist, made reference in his report to headaches often being a feature of major depressive illness. In his oral evidence he suggested that they might also be the consequence of Mr Crookes experiencing chronic pain as a result of his back condition.
65.It is not clear that there is any major difference in the opinion of Dr Reid and Dr Slack. If there were, I would prefer those of Dr Reid on the basis that headaches are more the concern of neurology rather than psychiatry. But, in any event, it seems to be common ground that Mr Crookes’ depressive disorder, which is itself an accepted condition, arose as a consequence of his accepted back injury. In these circumstances it would seem not to matter whether the headaches were a symptom of the back injury or the depressive disorder or both.
66.But however the headaches be viewed I accept Dr Reid’s opinion that they are a symptom rather than an injury. That being so, I consider that the Commission’s decision to reject liability for headaches as a separate condition or injury was correct and ought be affirmed.
67.The more difficult issue is that raised by the alternative formulation of Mr Crookes’ case, that is, that headaches, if not a separate injury, constitute an impairment that is permanent and which arises as a symptom of either or both of the accepted conditions. That question was the subject of supplementary submissions lodged by the parties after the conclusion of the hearing. The question is whether in that circumstance it is open to the Tribunal to determine that the Commission is liable to pay Mr Crookes compensation for the permanent impairment constituted by the headaches.
68.Ms Scott-Mackenzie, counsel for Mr Crookes, submitted that it was open to do so. She relied upon what was said by Downes J, as President of the Tribunal, in Fuad v Telstra Corporation Ltd[18] where his Honour said “all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made …” The Commission was asked, it was said, to consider a claim for compensation for headaches and was explicitly asked to admit liability to pay compensation to the “headaches injury” and assess compensation pursuant to ss 24 and 27 of the 1988 Act.
[18] (2004) 39 AAR 496.
69.That application resulted in two decisions, both made on 7 June 2007, that rejected the claims. Those decisions were affirmed on reconsideration on 11 October 2007. I have already concluded that the decision to affirm the decision rejecting liability for the condition of headaches was correct on the basis that headaches did not amount to an injury. But, Ms Scott-Mackenzie submits, there is a decision in relation to the headaches which, on this limb of the argument,
“are a further impairment resulting from an already accepted injury/condition, namely the major depressive disorder or the lower back injury or both.”[19]
[19] Paragraph 52, Applicant’s supplementary submissions.
70.Mr Clark, counsel for the Commission, did not directly address the question on which I sought supplementary submissions from the parties. He submitted that it was not open “as a matter of evidence” for the Tribunal to be satisfied that Mr Crookes had a 10% level of permanent impairment resulting from his headaches. The matters of which Mr Crookes complains, it was said, fall to be considered as an aspect of the pain and suffering component of compensation for non-economic loss under s 27 of the 1988 Act.
71.I am unable to accept the Commission’s argument. It accepts, correctly, that one injury may result in two or more impairments. So much is explicit in the Guide which notes “that a single injury may give rise to multiple loss of function”. Here, in his alternative formulation, Mr Crookes says that his headaches are the consequence or symptom of one or other or both of his accepted injuries, that those symptoms amount to an impairment as defined, that the impairment is permanent and that it warrants an assessment of 10% by reference to Table 13.1 of the Guide.
72.There are evidentiary issues to be satisfied but I can see no reason why the Tribunal lacks power to consider Mr Crookes’ entitlement to compensation on this basis. The question was squarely raised before the decision maker and has been the subject of reconsideration.
73.It seems to be common ground that Mr Crookes suffers from headaches; it is the frequency and severity of them that is in issue. The evidence, particularly of Dr Reid, satisfies me that the headaches are a consequence of either or both of his accepted injuries; his back condition or his depressive disorder. The Guide in Table 13.1 makes explicit reference to “intermittent disorders such as … tension headaches …” That would seem to confirm that headaches answer the description of “impairment”. I would, in any event, accept that persistent headaches, whilst a symptom, constitute a malfunction of part of a bodily system or function.
74.The evidence of Mr Crookes is that his headaches have been present for some years. They are, as Dr Reid said, a symptom of Mr Crookes’ depressive disorder which the Commission has accepted in its determination of 5 April 2007 amounts to a permanent impairment. In the absence of any suggestion in the medical evidence of the prospect of future improvement and given the length of time over which Mr Crookes has experienced headaches I am satisfied that the impairment occasioned by the headaches should be regarded as being permanent.
75.That being so it becomes necessary to consider the evidence regarding the frequency and severity of Mr Crookes’ headaches in order to determine the extent of the impairment.
76.The descriptions in Table 13.1 of the Guide that seem relevant are as follows:
0% attacks may be of any frequency BUT do not interfere with activities of daily living OR are readily reversed by appropriate medication or treatment
10%attacks occur 12 or more times a year AND cause minor interference with activities of daily living other than self care OR attacks occur less frequently AND cause interference with all activities of daily living other than self care
77.Given my earlier conclusion adverse to Mr Crookes’ credibility it is appropriate to treat Mr Crookes’ evidence with considerable caution. If, as I have concluded, his evidence regarding the event in September 1992 is unreliable there is reason to be cautious about his evidence generally where it is contentious. And, as Mr Clark points out, Mr Crookes himself attributes some of his headaches to causes other than his depressive disorder e.g. sexual dysfunction or his eye condition.
78.Mr Crookes gave considerable evidence, in the form of a detailed statement[20] and orally. Ms Scott-Mackenzie submits that his evidence was not challenged at the hearing. Whilst it may be true that counsel for the Commission did not put to Mr Crookes in terms that he was overstating the extent and severity of his headaches it was, I think, plain during the hearing that Mr Crookes’ credit was very much in issue and that the Commission would be submitting that his evidence on controversial aspects ought not be accepted.
[20] Exhibit 10.
79.The only medical practitioner to touch upon the point in evidence was Dr Slack. In his report dated 5 October 2006 Dr Slack was asked a series of questions regarding the permanence and severity of a variety of conditions including headaches. He referred to Mr Crookes continuing “to suffer regular headaches”, and then said:
“Again, I would rate the level of impairment at a level of ten. He does suffer persistent headaches but he seems to be able to continue to perform [activities of daily living] despite this.”
Whilst it is not as clear as it might be I am prepared to infer that Dr Slack’s reference to a “level of ten” is intended to convey an opinion that Mr Crookes’ headache symptoms warrant an assessment of 10% whole person impairment by reference to Table 13.1 of the Guide.
80.If it is to be read in that way I have considerable difficulty in accepting the opinion. First, and whilst the opinion of a medical practitioner may assist the Tribunal in coming to a view, it is the opinion of the Tribunal, having regard to all of the evidence, that is determinative. Next, Dr Slack’s reference to Mr Crookes being able to continue to perform the activities of daily living despite his headaches seems contrary to the description which requires, as least, “minor interference with activities of daily living” to warrant an assessment of 10% whole person impairment. The other concern I have is that Dr Slack has apparently considered, and assessed, the extent of Mr Crookes’ impairment from other conditions or symptoms. Thus, in reference to Mr Crookes’ psychiatric condition, Dr Slack says:
“I believe the whole person impairment under the guide I would rate as ten. I would justify this on the basis that he has ongoing anhedonic symptoms on a daily basis. He can perform the basic activities of daily living without supervision or assistance but at times need [sic] some direction.”
81.Dr Slack’s repeated assessments of “a level of ten” rather suggest that there may be a considerable degree of over-counting in his assessments.
82.For completeness, reference needs to be made to the definition of “activities of daily living” in the Guide. They are described thus:
“Activities of daily living are activities which an individual needs to perform to function in a non-specific environment i.e. to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
Ability to receive and respond to incoming stimuli
Standing
Moving
Feeding (includes eating but not the preparation of food)
Control of bladder and bowel
Self care (bathing dressing etc)
Sexual function.”
83.Leaving aside Dr Slack’s reference to a “level of ten” there is nothing in the balance of his report that suggests that there is any interference with the activities of daily living as a consequence of headaches. Similarly Dr Reid gives no description of the extent of the headaches that would suggest any interference with the activities of daily living. She refers only to a reported frequency of “almost every single day” for which Mr Crookes uses analgesics.
84.The medical evidence that touches on the issue does not satisfy me that Mr Crookes’ headaches cause any interference with the activities of daily living.
85.It remains then to consider the evidence of Mr Crookes. The principal source of that evidence is Mr Crookes’ statement of 8 July 2007. It is obvious from that statement that Mr Crookes has acquired considerable experience in matters concerning compensation. The result is that Mr Crookes’ statement directly addresses the constituent elements of a 10% whole person impairment under Table 13.1 of the Guide. Thus, Mr Crookes says:
“Headaches constantly interfere with the activities of a normal day… My ability to respond the incoming stimuli is reduced whilst suffering a mild headache, and greatly reduced whilst suffering more severe attacks…”
86.There is no doubt that were Mr Crookes’ evidence to be accepted a 10% whole person impairment under Table 13.1 of the Guide would be amply demonstrated. But I am unable to accept Mr Crookes’ evidence.
87.I have already indicated my conclusion that his evidence of an incident in 1992 causing him a separate back injury is unsatisfactory. There were other aspects of his case where I am well satisfied that he was dissembling. His evidence that Dr Morgan “cut him short” with his answers and “didn’t want to listen” is an example where I conclude that his evidence was simply made up. Similarly his evidence that each of Dr Purssey and Dr English had been told of the event in 1992. Neither of them make reference to having being told that as part of the extensive histories taken by them and counsel for Mr Crookes did not seek to elicit evidence of that history having been given. Mr Crookes, I am satisfied, made up these details in order to overcome the difficulty what was apparent from no mention having been made of the 1992 event until his statement of October 2007.
88.My general lack of satisfaction with the reliability of Mr Crookes’ evidence on this aspect of the case together with the fact that such medical evidence as touches upon the issue points to a contrary conclusion leads me to conclude that I am not satisfied that Mr Crookes’ headaches constitute a permanent impairment warranting as assessment of 10% whole person impairment under Table 13.1 of the Guide. Given the terms of s 24(7) of the 1988 Act I conclude that compensation is not payable to Mr Crookes under s 24 for his headaches.
89.It follows that I would affirm the Commission’s decision in this aspect of the proceedings.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ...................Signed.................................................
Melissa Hamblin, AssociateDates of Hearing 11-12 March 2009
Last submissions 27 March 2009
Date of Decision 7 May 2009
Counsel for the Applicant Ms S Scott-Mackenzie
Solicitor for the Applicant Slater Gordon
Counsel for the Respondent Mr C J Clark
Solicitor for the Respondent Dibbs Abbott Stillman
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