RODNEY HICKS and MILITARY REHABILITATION AND COMPENSATION COMMISSION M J Carstairs, Senior Member
[2010] AATA 170
•11 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 170
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1291
VETERANS’ APPEALS DIVISION ) Re RODNEY HICKS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
CORRIGENDUM
Tribunal M J Carstairs, Senior Member Date 12 March 2010
PlaceBrisbane
Decision Pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal directs the Registrar to alter the text of the decision published on 11 March 2010 so that the decision where it refers to costs reads “The Military Rehabilitation and Compensation Commission should pay costs, if any, incurred by the applicant in relation to the shoulder condition”. ...................[Sgd]...........................
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 170
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1291
VETERANS’ APPEALS DIVISION ) Re RODNEY HICKS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date11 March 2010
PlaceBrisbane (heard in Townsville)
Decision The Tribunal sets aside the decision under review as it relates to Rodney Hicks’ shoulder condition and substitutes the decision that the respondent is liable to pay compensation for the shoulder condition (described as bilateral rotator cuff arthropathy; left sided acromioclavicular joint arthropathy, and (bilateral) full thickness tears of the supraspinatus tendons).
Comcare should pay costs, if any, incurred by the applicant in relation to the shoulder condition.
With respect to the claim as it related to cervical spondylosis, the Tribunal affirms the decision under review.
....................[Sgd]..........................
Senior Member
CATCHWORDS
MILITARY COMPENSATION – service in Army – injured in fall in 1972 during field exercise – shoulder condition – arose in compensable circumstances – 1971 and 1988 Acts satisfied – decision in relation to shoulder condition set aside
MILITARY COMPENSATION – service in Army – injured in fall in 1972 during field exercise – Cervical spondylosis not related to employment – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 27, 29Comcare v Sahu-Khan [2007] FCA 15
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286REASONS FOR DECISION
1.
Rodney Hicks seeks compensation for neck and shoulder conditions. He claims these conditions result from a fall (“the fall”) he suffered during field exercises with the Australian Army at Healesville in 1972. Mr Hicks was seriously injured in the fall. He tumbled some 100 feet down an embankment, under the weight of a
27 kg pack, and came to rest heavily against a log. X-rays were taken. Mr Hicks required bed rest for several days, perhaps up to a week, at a field medical unit and then was returned to his base at Townsville.
2. The above history is confirmed in what remains available of the service medical records from that time and later. Unfortunately, many of the medical records directly relating to the fall are missing. For the most part, we must rely on secondary materials.
3. Nevertheless, contemporaneous and later medical reports show that Mr Hicks sustained a lumbar injury. He was still complaining of back pain some twelve months after the fall[1] and requested further checks be carried out. When Mr Hicks reported a subsequent back injury in 1974,[2] he made reference to the fall as having led to “back strain” and “sciatica”.
[1] T24, pp 108,110.
[2] Exhibit R2.
4. What was completely absent from the available written materials, however, was any contemporaneous (or near contemporaneous) record referring to Mr Hicks having experienced any neck or shoulder symptoms. The report of the X-ray taken at the time of the fall referred only to injury to L4/L5 in the lumbar spine.
5. After the fall and until taking his discharge, there were many opportunities for Mr Hicks to mention any ongoing symptoms in his neck and shoulders. He did not do so.
6. According to Mr Hicks, he reported suffering neck and shoulder pain in the fall to an orderly and also mentioned bruising over his shoulders, only to be told this was to be expected and that he should take Panadol and rest. Mrs Hicks, who assisted her husband in the presentation of his case, submitted that the neck and shoulder problem had been longstanding but that her husband did not complain of it, as he was not the complaining type. Mrs Hicks said it came as a complete surprise to her when her husband told her (in about 2008) that he would have to give up work as a taxi driver because he could no longer reach back to take fares from passengers. However her husband’s announcement made sense of other restrictions that she had noticed in the past: her husband was unable to lift or play with their children when they were young; he was reluctant to carry luggage or other weights; and he seemed to have trouble with a range of ordinary household jobs that other men his age could do easily.
THE ISSUES
7. Thus, the question before me ultimately amounts to whether Mr Hicks’ claims—which he did not make until some 35 years after the fall—have any substance. That is, whether the conditions of “shoulders and neck”[3] are causally related to his employment in the Army through the injury he sustained in the fall.
[3] T5.
MEDICAL EVIDENCE
8.
I will commence with Mr Hicks’ symptoms and some of the diagnoses.
Mr Hicks reports having persistent headaches, often worse at night. He has constant neck stiffness and restricted movement of both upper limbs, particularly above shoulder height. His neck stiffness, which reduces Mr Hicks’ range of movement in all directions by 20%, appears to be due to cervical spondylosis. In addition, clinical examination reveals that Mr Hicks has wasting of the supraspinatus and deltoid muscles.[4] He is tender over the acromioclavicular joint and upper parts of the rotator cuffs. That tenderness was observed during clinical examinations by both
Dr R Watson, consultant in rehabilitation medicine, and Dr G Curtis, orthopaedic surgeon.
[4] Exhibit R3 at p 9.
9. Medical reports prepared in relation to Mr Hicks’ neck and shoulder conditions are in reasonable agreement. I am satisfied that Mr Hicks suffers early stages of degenerative disease in his neck, which attracts a diagnosis of cervical spondylosis. As to the shoulder problem, I accept the evidence of Dr Curtis that investigations confirm that Mr Hicks has evident bilateral rotator cuff arthropathy;[5] acromioclavicular joint arthropathy more evident in the left shoulder than the right; and (bilateral) full thickness tears of the supraspinatus tendons.
[5] Exhibit R3.
10. A significant area of disagreement in the medical reports concerned the interpretation of the results of X-rays and an ultrasound, carried out on 3 January 2007.[6] Dr R Keyes, Mr Hicks’ general practitioner, had forwarded the interpreted results to the respondent, noting the appearance, on both sides, of old fractures of the greater tuberosity (the rounded head of the bone of the upper arm which helps to form the shoulder joint) and a crack in the glenoid rim on the left side. Dr Keyes suggested that these fractures might have occurred in the fall.
[6] T7, p 24.
11.
A number of doctors—Dr Keyes,[7] Dr P Haynes,[8] Dr Watson[9] and
Dr J Maguire[10]—referred to, and seemingly accepted, this evidence of fractures.
Dr Curtis however disagreed, and considered that this was a misinterpretation of what appeared in the X-rays.
[7] T7.
[8] T13.
[9] T16.
[10] Exhibit A1.
12. Dr Curtis made the initial observation that bilateral fractures of the tuberosities would be a rare occurrence, and he did not interpret the X-rays as showing fractures.
13. Dr Curtis nevertheless believed that Mr Hicks had sustained significant injuries in the fall. In his opinion, the fall likely caused haemorrhaging on both sides leading to significant haematomas (swellings containing blood), which then ossified and became calcified[11] giving the appearance of fractures when examined radiologically. Dr Curtis described Mr Hicks’ shoulder joints as having an amorphous mass of bony material sitting where the greater trochanter is meant to be[12] and he described this as “a substantial injury on both sides”. Dr Curtis explained that the fall involved direct impact in which tendon fibres attached to the bone were pulled off, leading to haemorrhaging and then haematoma. Dr Curtis said that the site of a haematoma is a breeding ground for new cells. In this process, new bone cells grow in the area, become calcified and lay down new bone. Dr Curtis said that this was the primary area of injury, and the amorphous mass of bone was being misinterpreted as fractures.
[11] Transcript at p 3, lines 20-30.
[12] Transcript at p 5.
14. In summary, Dr Curtis’ evidence left no real doubt he believed that Mr Hicks had sustained a significant injury in the fall, but not in the nature of fractures.
15.
Dr Curtis said that as a result of his injury in the fall, Mr Hicks had an increased burden of impingement of his acromions and, as time went on, further degeneration made the area more rigid. Dr Curtis emphasised in his oral evidence that a congenital factor of Mr Hicks’ anatomy had a significant role to play in the degenerative changes that could now be observed in his shoulder. He said that
Mr Hicks’ acromions are of at least Type II (possibly between Type II and Type III). This categorisation of types of acromion refers to the shape of the acromion process above the head of the humerus. If the acromion is curved, as with Type II and
Type III acromions, the normal sliding action of the tendons underneath is more likely to be impeded. In other words, the effects of the fall aggravated the effects of Mr Hicks’ congenital factor.[13]
[13] Transcript at p 6; Exhibit R3 at pp 3-4.
16. As to the area of supraspinatus rupture, Dr Curtis said this was located about half an inch proximal to that area, the site of the ruptured rotator cuff. He thought it unlikely that the rupture occurred at the time of the fall. It came later, although he could not say when, exactly. Dr Curtis ultimately settled his opinion as being that the fall would have had some effect, stating that “it most probably did”.[14]
[14] Transcript at p 9.
17. Dr Curtis appears to have given less attention to the question of cervical spondylosis, as he readily acknowledged in his oral evidence. As I understand his evidence, he concluded that Mr Hicks’ cervical spondylosis was age-related degenerative change, but he did make the passing observation in oral evidence that there was “a greater than 51% chance” that the fall was a contributor too, although he qualified this by suggesting that he did not see it as being a major contributor.
18.
Mr Hicks was referred to Dr Watson by Dr Keyes for his bilateral shoulder pain. Dr Watson noted that pain as being present without any history of specific trauma to the area, because Mr Hicks had not mentioned such trauma to Dr Keyes in the some 25 years that Mr Hicks had been under his care. Dr Watson diagnosed
Mr Hicks as having osteoarthritis of the acromioclavicular joint and cervical degenerative changes at C5/6 and C6/7 (which he observed would be normally age-related but which in Mr Hicks’ case he attributed to the fall).
19. Contrary to Dr Curtis, Dr Watson agreed with the predominant medical opinion that the 2007 X-rays revealed old, healed fractures of the greater tuberosities as well as a left-sided glenoid fracture. Dr Watson said this suggested Mr Hicks suffered a very major direct trauma in the fall, consistent with Mr Hicks’ description of having bruising to his back and shoulders.[15]
[15] Recounted at pp 1-2 of his report, dated 22 July 2008 (T16).
20. Dr Maguire, orthopaedic surgeon, completed a written report after reviewing Mr Hicks on 19 October 2009. Dr Maguire accepted that Mr Hicks sustained injuries to his shoulders and neck area in the fall. He thought that Mr Hicks being confined to several days bed rest indicated the seriousness of the injuries and was an unusually long period in a defence setting. Dr Maguire emphasised that Mr Hicks’ account of what happened in the fall ought to be believed: in other words, the mechanism of injury as Mr Hicks described it made sense. Dr Maguire said he would expect Mr Hicks to have sustained multiple injuries, not just back injuries.
21. Dr Maguire observed by clinical examination that Mr Hicks has significant weakness of abduction and external rotation in both shoulders, worse on the left than the right: the right shoulder required surgery, but the left was past repair. Dr Maguire accepted that the 2007 X-rays are suggestive of small avulsion fractures of both greater tuberosities. In his opinion, such injuries are consistent with the fall.
22. Dr Maguire agreed that degenerative change usually explains tears in the rotator cuff. However he said there would have been minor tears in the fall, which worsened later. In other words, his opinion was that the fall was the initiating factor.[16]
[16] Exhibit A1 at p 3
THE LEGISLATION
23. Before any form of compensation is payable there must be an “injury” which arises out of, or in the course of, employment or a “disease” to which employment was a contributing factor. This case was presented as one to be determined under the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”), however it seems to me the medical evidence suggests that the questions of connection between injury or disease and employment must first be considered under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”).
24. This is because the fall took place in 1972 when the 1971 Act was still in force and before the 1988 Act came into operation. As I understand the evidence before me, there is solid agreement between reporting doctors that the fall was productive of injury to Mr Hicks. The 1971 Act has to be the starting point.
25. Whether determined under the 1971 Act or under the 1998 Act, for Mr Hicks to succeed in his claims he must establish that the condition or conditions—whether these are diseases or injuries[17]—arose in compensable circumstances. In that regard, the 1971 Act provided:
§at s 27, that if personal injury arising out of or in the course of employment is caused to an employee, then the Commonwealth was liable to pay compensation; and
§at s 29, that if employment was “a contributing factor” to the contraction, aggravation or acceleration of a disease, then such disease was compensable, it being a deemed as an injury.
[17] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286.
26. The fall was sufficiently documented (despite the absence of a complete set of medical records) to leave no doubt of its occurrence. We also know with certainty that Mr Hicks presently has disorders affecting his neck and his shoulders, as set out at para 9, above.
27. Mr Hicks was not legally represented. He argues his case from the proposition that the fall must be implicated in the present problems with his neck and shoulders because before the fall he was fit and healthy and after it he was not. To his knowledge, he had no other significant incidents in his life that would explain his current problems. Arguments of this kind (that is, “after event A, therefore because of event A”) can entail logical fallacy. If there were no more to his case than this, Mr Hicks’ case probably would not succeed.
28. Dr Curtis warned of such problems in the “executive summary” to his report.[18] He cited the hazards of making a judgment about events that occurred 35 years ago without having the benefit of X-rays from that time to confirm conclusively what happened in the fall. He stated that there is no place for assumptions in a case like this and that a true clinical picture relies on accurate information.
[18] Exhibit R3 at pp 3-4.
29. However the medical evidence reveals much to indicate that, at least with respect to his present shoulder problems, Mr Hicks is entitled to compensation. In that regard, the dispute between doctors about whether the evidence suggested past fractures of the heads of the humeri was a distraction that masked what was otherwise common ground in the medical opinions. That common ground was that the fall was implicated in the present problems with Mr Hicks’ shoulder. That was plain in the reports of Dr Keyes, Dr G Winter (specialist in sports medicine),[19] Dr Watson, Dr Maguire and Dr Curtis.
[19] T9.
30.
The most convincing support for that position comes from Dr Curtis, who has longstanding expertise in orthopaedics (some forty years in specialist practice).
I found Dr Curtis’ evidence to be a sound, well-reasoned analysis both of the mechanics of the injury sustained in the fall and of the connection between the fall and Mr Hicks’ rather complex present shoulder problem. In that regard, I thought
Dr Curtis’ expertise was more directly relevant to such an analysis than was
Dr Watson’s, who appeared to simply accept without question the findings reported in relation to the 2007 X-rays, despite the inherent unlikelihood of fractures occurring on both sides.
31.
Dr Curtis’ opinions were less clear from his written report than the conclusions he expounded in oral evidence. His written report focussed primarily on the mistake of assuming the existence of past fractures. However, I was left in no doubt after
Dr Curtis gave his oral evidence that there was a real connection between Mr Hicks’ shoulder pathology and the fall.
32.
Accordingly, I am satisfied that the circumstances of compensable injury under the 1971 Act are here made out, in that Mr Hicks suffered a personal injury arising out of or in the course of employment. This injury set in train a disease process that led to the pathology now identified in Mr Hicks’ shoulder, which
Dr Curtis described as bilateral rotator cuff arthropathy[20] and left-sided acromioclavicular joint arthropathy, and which Dr Watson referred to as being osteoarthritis of the acromioclavicular joint.
[20] Exhibit R3.
33. For disease to be compensable under the 1971 Act, employment must have been a contributing factor: s 29. I am satisfied that Mr Hicks’ employment in the Australian Army made a contribution to the disease process, consequent upon the initiating injury (i.e. the fall).
34. It would be difficult to date exactly when this disease commenced. However, such difficulty does not present a problem in terms of the two Acts, as it seems to me that under either Act Mr Hicks would be entitled to compensation for “disease”. The 1988 Act requires a “material” contribution rather than simply contribution, and I am satisfied that the evidence meets this threshold. In Comcare v Sahu-Khan [2007] FCA 15, Finn J, adopting the conclusions reached by French and Stone JJ in Comcare v Canute (2005) 148 FCR 232, said that the question of material contribution imposes an evaluative threshold below which a causal connection may be disregarded.[21] Dr Curtis’ evidence satisfied me that the fall made a material, or a substantial, contribution to the disease process.
[21] At [13].
35. I was not, however, satisfied that Mr Hicks’ cervical spondylosis was related to the fall in any meaningful sense, either under the 1971 Act or the 1988 Act. I accept Dr Curtis’ evidence that Mr Hicks, at the age of sixty-five, presented with age-related degenerative changes in his neck. I have referred to the concession Dr Curtis made in oral evidence that there might have been some connection with the fall (he spoke of there being a greater than 51% chance that the fall made a contribution). However it would be a mistake to read into that remark that the fall made a 51% contribution. Dr Curtis simply was indicating that although the possibility could not be ruled out, it was not a conclusion he supported. It was amply clear from Dr Curtis’ written report that he saw Mr Hicks’ cervical spine condition as being typical for a man in his seventh decade. Dr Curtis did not focus further upon the neck condition.
36.
Dr Watson’s report (and his oral evidence) did not give a convincing explanation to support his conclusion that what otherwise appears to be normal age-related changes were somehow, in Mr Hicks’ case, connected with trauma.
Dr Maguire did not deal with the question of cervical spondylosis at all, limiting his views to drawing a connection between the fall and Mr Hicks’ shoulder injuries.[22]
I regard Dr Watson’s views about the causes of Mr Hicks’ cervical spondylosis as mere speculation, which would not satisfy the test for contribution under either the 1971 or the 1988 Acts.
[22] Exhibit A1 at p 3.
DECISION
37. Accordingly, I set aside the decision under review as it relates to the shoulder condition and substitute the decision that the respondent is liable to pay compensation for Rodney Hicks’ shoulder condition (described as bilateral rotator cuff arthropathy, left sided acromioclavicular joint arthropathy, and (bilateral) full thickness tears of the supraspinatus tendons).
38. With respect to the claim as it relates to cervical spondylosis, I affirm the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.
Signed: ......................[Sgd].......................................................
Mátyás Kochárdy, AssociateDate of Hearing 23 November 2009
Date of Decision 11 March 2010
Advocate for the Applicant Mrs Valerie Hicks
Counsel for the Respondent Mr Charlie Clark
Solicitor for the Respondent Ms Jane Lye, Australian Government Solicitor
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