Romanov-Hughes and Comcare
[2005] AATA 1157
•22 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1157
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/1322 and V2003/1323
GENERAL ADMINISTRATIVE DIVISION ) Re ALEXANDER ROMANOV-HUGHES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date22 November 2005
PlaceMelbourne
Decision The decisions under review are affirmed. ..............................................
Senior Member
COMPENSATION – back and lower leg injuries alleged – previous applications – whether any injuries and if so whether related to employment – decisions affirmed
REASONS FOR DECISION
22 November 2005 Mr John Handley, Senior Member 1. These applications are the eighth and ninth respectively issued by the applicant against the respondent. The previous and current applications allege an entitlement to compensation for injuries arising out of the applicant’s previous employment with the Department of Defence. Additionally, the applicant has successfully defended two applications that have been made against him to have proceedings dismissed as being frivolous or vexatious.
2. The second application to have proceedings dismissed as frivolous or vexatious concerned the two applications under review in these proceedings. I heard that application and published written reasons for decision on 21 May 2004. In that application I summarised the history of the applications to that date. A history of the applications lodged by the applicant against the respondent was also found in the body of decisions made by Senior Member Friedman in applications V2000/1174, V2001/110 and V2001/109.
3. The other applications issued in this Tribunal mainly concerned liability with respect to feet and ankle injuries for which limited payments of compensation had been allowed. The applications heard by Senior Member Friedman concerned the liability of the respondent to pay weekly compensation between December 1998 and January 1999 (V2000/1174); the liability of the respondent with respect to an L4/L5 and L5/S1 disc degeneration (V2001/109); and the liability of the respondent with respect to left ankle injury extending to a limited claim for weekly compensation and some medical and like expenses (V2001/110).
4. The present applications again involve claims for compensation for the lower leg and back.
5. Application V2003/1322 arises out of a claim by the applicant on 1 May 2003 where he described the injury as “slowly progressing tibialis posterior tendon dysfunction and spring ligament stretching” (T3, page 9). The reviewable decision denied liability for that injury (T9).
6. Application V2003/1323 arises out of a claim form completed by the applicant also on 1 May 2003 where the injury described is “chronic back pain (annular tear and loss of disc height at L5/S1)” (T3). The reviewable decision denies liability for that condition (T7).
7. Senior Member Friedman made findings with respect to the liability of the respondent concerning the lower leg and back injuries. However, the applicant asserted at the hearing of the application brought by the respondent to dismiss the application as being vexatious and frivolous, that he had lower leg and back injuries of a different description and by a different cause or mechanism to that which had previously been pleaded. In fact the applicant specifically asserted back injury which was thoracic in nature. That was not apparent from his claim form of 1 May 2003 or from the determination or reviewable decision. It was raised for the first time during the interlocutory hearing. I asked the applicant to specifically state the basis upon which he intended to pursue these applications and he did so in the following terms (refer paragraph 28 of the previous decision):
(i)He presently suffers from a lumbar injury which causes pain to travel up his spine to the middle of his back; and
(ii)Whilst in some respects he does now seek to claim compensation for the “same injury”, it is not “static” and the foot and ankle injuries are “changing”; and
(iii)There is an inter relationship between the thoracic and lumbar injuries and they are deteriorating, in part, because of poor posture; and
(iv)Some relief from back pain is achieved by standing and walking but this has caused, by weight bearing, deterioration and increasing pain in his left foot and ankle.
8. I was satisfied that the decision previously made by Senior Member Friedman, in its reference to “back injury” and “back pain”, did not distinguish between lumbar or thoracic injury. I decided on balance that the applicant was entitled to pursue his application for compensation with respect to thoracic injury. I also decided that by reason of the leg injury as pleaded, and the circumstances giving rise to it as asserted at the interlocutory hearing, that the applicant should be entitled to pursue that claim. Accordingly, I dismissed the application for an order that the proceedings be declared vexatious or frivolous.
9. The matter proceeded to a hearing on 28 January and 1 February 2005. The applicant was unrepresented. Mr Gourlay of Counsel appeared on behalf of the respondent.
10. An unfortunate characteristic of this hearing was the apparent anger and resentment felt by the applicant towards his former employer, Comcare and a number of other persons who had a peripheral involvement. The transcript records a number of adverse comments made by the applicant directed towards his former personnel manager, compensation officers within the Department of Defence and Comcare, rehabilitation providers and doctors. On one occasion he lodged an application with the Human Rights and Equal Opportunity Commission. Indeed on another occasion a prosecution against the employer was contemplated arising out of a perception on the part of the applicant that he had been “mismanaged” in the employment. On another occasion the applicant alleged that the employer had “failed in their duty of care in not providing a safe and healthy workplace” (transcript, page 20). Additionally, he complained of not being employed as an “accountant” (page 41) and on one occasion alleged Comcare and the Department of Defence were “corrupt” (page 102). The resentment and anger experienced by the applicant was associated with the duties that he was required to undertake in the employment, the nature of the furniture that he was required to use, the location and type of photocopier that he was required to use and a belief on his part that his complaints were not being taken seriously.
11. The applicant said that his back injury was initiated by a fall into a trench at the workplace in June 1994. However, he said that his “current claim for back injury” was related to “a repetitive strain injury” arising out of photocopying duties in the Army Health Records Office (transcript, page 15). The applicant said that the injury arising out of the “repetitive strain” was a “different type of injury” to the injury which was the subject of his evidence in previous proceedings. Additionally, the applicant said that his lower leg injury was associated with weight bearing by having to walk and stand. That in turn was also related to the back injury because he had been unable to maintain a seated position.
12. The applicant said that he was required to sit at a photocopier and at right angles to a bench or table. He said the work duties required him to repetitively twist from the photocopier to his bench which caused the back injury which is the subject of the current claim. He said he made many complaints to the employer and whilst he acknowledged that relevant personnel ergonomists and rehabilitation consultants were engaged, he basically continued to undertake that work in the manner described. He said there was a period of time where he was transferred to work with the Bureau of Meteorology but that was short term only and he eventually returned to work with the Department of Defence.
13. The applicant said that the last review concerned whether he had a back injury by the episode of 1994. He said the current application concerned a claim for compensation for a back injury which is “different . . . . but interrelated”. He said he presently suffers from degeneration and a collapsed disc which causes muscular pain in the centre of his back when he sits for lengthy periods or when he performs “unusual tasks”. He said the “centre back injury” is the “repetitive strain type injury” that he associated with the photocopying duties at work (page 27). The applicant acknowledged that he had made a claim for thoracic injury in 1998. That claim was accepted by the respondent. He said the claim that he made in September 2000 (V2001/109) was intended to include the thoracic injury but the claim form requires a precise diagnosis as found within a medical certificate, whereas, back pain is not apparent by an MRI scan and therefore is not referred to in a medical certificate and was not recited on the claim form.
14. With respect to the lower leg injury, the applicant said that he went off work in approximately July of 1998. He said he was treated by Mr Edwards and by Dr Howells. He said his foot was injected with cortisone following the diagnosis of “spring ligament injury”, but the cortisone injection caused his foot to be worse. An application was made for funding from Comcare to meet the costs of surgery but it was refused. The applicant said that he returned to work approximately 11 months later in June 1999. In the interim he said he had some relief from his back injury because he did not work and was not undertaking the duties that he said caused his back pain to manifest. Surgery was performed over the left foot and ankle in January 1999. A claim was later made for arch supports for his shoes and by April or May of 1999 the applicant said that he was having severe leg pain. He was ultimately referred to Mr Brendan Dooley, an orthopaedic surgeon, who thought that there was an association between his leg pain and his back pain. The applicant said that when he returned to work in June 1999 he experienced less pain if he was seated on a higher chair. He said “the lower the chair the more pressure that was coming up through my feet onto my spine” (page 32). Thereafter the applicant said that he sought a higher chair but the employer refused to supply it. He said he worked until October 2000 but has not worked since.
15. On 16 November 2000, the applicant said that he suffered a severe worsening of his back whilst seated at home. He said that episode occurred by “an accumulation of years of – the build up over a number of years”. He said “my back has been sore ever since and like I say to the extent that I don’t believe able to work at all” (page 33). He said as a consequence of the back pain that he has suffered since November 2000, it is more painful to be seated and he therefore stands and walks at a frequency greater than previously, which is causing a deterioration in his lower left leg.
16. In cross-examination, the applicant said that he understood that the L5/S1 area was the lower part of his back and the annular tear that he had suffered was also located at the lower part of his back. He said that the last review before Senior Member Friedman involved an inquiry into the relationship between lower back pain and the employment and he had then thought that the initiator of the lower back pain was stepping into the trench at work in June 1994. He also thought that the annular tear had then occurred (page 37). However, his lower spine had subsequently degenerated by reason of the work that he had then performed.
17. The applicant acknowledged that a former supervisor observed him in December 1994 having affected mobility at work. It was about that time that he first made a complaint of back pain which he then thought was referrable to stepping into the trench in June 1994. In March 1995, the applicant agreed that he was moved into the publishing area at the Department of Defence from which time he had increased back pain which he then associated with having to stand and walk for the majority of each working day. He also agreed that he did not seek treatment for back pain until 1998. The applicant disagreed with the suggestion put to him by Mr Gourlay that the first complaints of pain and the first presentation for treatment “isolated” the lower back injury from the episode of stepping into the trench in June 1994. Additionally the presentation for treatment of back pain in 1998 was associated with thoracic pain as evident by reports of Dr Mutton of 3 July 1998 and Dr Sutcliffe on 26 June 1998. The applicant agreed that he ceased work on 20 May 1998 but returned in July 1998 and was paid compensation in the interim. He also agreed that Doctors Mutton and Sutcliffe had reported that by 3 July 1998 he had been fit to return to work. However, he did not agree that he became pain free from that date and that his back had improved.
18. The applicant agreed that he again went off work on 17 July 1998 by reason of his lower leg injury and returned to work in May 1999 (on a negotiated program of reduced hours). Upon his return to work the applicant agreed that his hours were gradually increased. Surgery was performed on the lower leg towards the end of 1999 for a non-compensable injury and he was certified to return to work on 16 March 2000. The applicant agreed that he worked until 17 October 2000, again on restricted hours and duties with time off for annual leave in June 2000 and an extension of recreation leave in July 2000. Despite the restrictions and limitations on the hours worked between March and October 2000, the applicant said that he continued to have increasing pain by the reason of the increasing hours that he was working (transcript, page 58). However, he agreed that between August and October 2000, he did not perform photocopying work and therefore did not undertake the repetition that he said was the cause of his back pain. He said that the increasing pain approaching October 2000 was associated with having to work in a seated position and at or about that time he made a complaint about the location of his computer keyboard.
19. The applicant agreed that when he last worked on 17 October 2000, he presented a certificate to the employer of absence by reason of a broken tooth. At the expiration of that certificate he agreed he provided another certificate claiming incapacity by reason of allergies. At the explanation of that certificate, he provided another certificate concerning the period 3 ‑ 18 November 2000 with respect to a “medical condition”. For the period 20 November to 20 December 2000 he provided a medical certificate for the condition described as “back”. The applicant agreed that on 16 November 2000, that is during the currency of the certificate for 3 ‑ 18 November 2000, he suffered an episode at home whilst seated watching television. He said that his back then “collapsed” and thereafter he suffered a significant increase in his symptoms (pages 65 and 67). He agreed he had been sifting soil at home prior to this event.
20. Accordingly, the applicant agreed that his incapacity from 17 October 2000 did not originate by reason of back injury or pain, or foot injury or pain and his inability to work from 16 November 2000 is associated with the episode at home on 16 November 2000. He said the pain then and subsequently has affected the base of his spine (page 67). He agreed with the proposition put to him by Mr Gourlay that Doctors have not associated the episode at home in November 2000 with his former employment and some have commented that the degeneration in his spine is associated with his age and with excess weight. The applicant agreed that between March and October 2000, he had not had treatment for his back. The applicant also agreed that Dr Mutton examined him again in December 2000 at the request of the employer and reported that he was then able to resume the return to work program that he had been undertaken prior to October 2000.
21. The applicant agreed that the episode at home in November 2000 did not affect his thoracic spine but said that from 1998 onwards he had not ever been pain free in that part of his back. When he was pressed on this issue, and when he was reminded that the compensation then paid was for a limited period only, the applicant said “I am saying that at any time after that if I had done that same task the pain would have still been there as far as I am concerned”. He said that he was suffering thoracic pain whilst he was seated whilst being cross-examined during the hearing (page 73).
michael shannon
22. Mr Shannon is an orthopaedic surgeon who examined the applicant at the request of the respondent on 6 August 2004. He provided a report of 9 August 2004.
23. In evidence, Mr Shannon said that he did not obtain any history from the applicant of any thoracic spine “problems”. He said the only symptoms described to him by the applicant were around his mid lumbar area. He obtained a history of lumbar and thoracic symptoms subsiding after there had been a transfer away from the work which had initially produced the symptoms; namely, twisting and turning whilst seated performing clerical type work. The history that he obtained was that that work was undertaken in 1995 and in 1998.
24. Mr Shannon was of the opinion that the applicant did suffer from lumbo-sacral disc degeneration which had been temporarily aggravated by employment but had not been caused by the employment. He was of the opinion that the extent of the degeneration would not prevent the applicant from undertaking employment in an office environment with “an appropriately ergonomic situation”.
25. Mr Shannon was asked to consider the applicant’s evidence of having moved and sifted soil immediately prior to 17 November 2000 when his back “collapsed” at home. Mr Shannon said that that type of history is common in the case of persons who complain of severe or spontaneous back pain. That is to say there is usually a precipitating episode within a day or so of the episode occurring.
26. In cross-examination by the applicant, Mr Shannon said that spinal degeneration usually commences at the age of 19 years and in the case of acute disc lesions, in the ages of 20 and 30. He said that approximately two-thirds of persons aged 50 years or older would have evidence of disc degeneration evident upon MRI scan. The applicant was aged 55 years at the time of examination by Mr Shannon.
27. Mr Shannon noted that the applicant had scoliosis of his thoracic spine. He also noted that Mr Shumack had determined that Schuermans disease was also present. Mr Shannon described that process as a “mildly progressive deformity” which is likely to cause degenerative changes in the thoracic spine. He also noted that the scoliosis was “minor” and would have been unrelated to inappropriate ergonomic furniture in the workplace. In general, Mr Shannon thought that any thoracic degeneration would have no relationship to the furniture occupied during employment.
28. The applicant attempted to introduce another basis to link employment with injury namely, photocopying duties between 1991 and 1993. The present application, and none of the former applications, had ever been advanced by the applicant asserting that any back injuries had an association with the circumstances of employment prior to stepping into the trench in June 1994. Despite the applicant being advised of my concern that this concept was being introduced, I allowed him to ask questions of Mr Shannon concerning it. The witness said that in his opinion being seated for long periods in an unergonmic environment would not produce permanent symptoms.
29. With respect to the specific basis upon which this application was advanced, Mr Shannon said that he could find no basis to support the proposition that any thoracic pain had an association with any lumbar injury.
conclusion and reasons for decision
30. Despite the findings made by Senior Member Friedman in application V2001/109 on 14 February 2003, the applicant again claimed compensation for a back injury.
31. Senior Member Friedman reviewed a decision by reason of a primary claim made by the applicant on 6 September 2000 for compensation arising out of a “small central circumferential annular tear with mild degeneration of the L5/S1 disc of spine”. That injury was recorded in the claim form as having occurred on 20 June 1994. The present application concerning the claim for compensation for back injury (V2003/1323) commenced by a primary claim dated 1 May 2003 where the injury for which compensation was sought, was described as “chronic back pain (annular tear and loss of disc height at L5/S1)”. That injury was described as having occurred on 16 November 2000. The claim form records that the injury occurred to the “base of spine”, that there had been a previous work injury on 20 June 1994 and whilst the injury on 16 November 2000 did occur “at home after years of aggravation” the injury was recorded as having “first become apparent in March 1995”.
32. Senior Member Friedman found that the first complaint of back pain following June 1994 was six months later. He also found that the back pain had not been raised in earlier proceedings by Senior Member Gibbs. It was found that “there is no demonstrable link between the back problem suffered by the applicant and the accident. Therefore the Tribunal finds that the respondent is not liable to pay compensation to the applicant for incapacity due to injuries to the applicant’s back”.
33. Following the initiation of the current proceedings, the respondent moved to have it dismissed upon the basis that it was vexatious and frivolous. I dismissed that application because it became apparent during that hearing that the applicant was asserting a back injury which was not solely lumbar in nature. It was alleged that there was a thoracic back injury which had a relationship to the lumbar back injury which also had a relationship to a previous foot and ankle injury, being the subject of previous compensation proceedings.
34. The present application concerns a decision made by the respondent to deny liability for payment of compensation for the back injury as claimed. Despite the assertions of the applicant at the interlocutory hearing, I am not satisfied that the applicant presently does have any thoracic injury. For reasons which follow, I am satisfied that the decision under review in so far as it concerns the back injury, should be affirmed. Having regard to the history of the applicant’s claims upon the respondent and the matters put in issue by these proceedings, I propose to make specific findings with respect to the injuries alleged. I do not propose to “review” the decisions previously made by my colleagues except that by these proceedings, and having regard to the manner in which the applicant prosecuted this application, findings will be made as to the injuries alleged.
35. The applicant has previously claimed compensation for a “lower thoracic muscle strain” which he alleged occurred in early 1998 and over which he first had treatment on 20 May 1998. That injury was claimed in a claim form dated 21 May 1998 for which the respondent ultimately accepted liability and paid compensation for a limited period concluding in July 1998 upon certification then made by both Dr Mutton and Dr Sutcliffe that the applicant was fit to resume duties. The injury was described as “backache in centre of back just above waist” and was described as originating from work requiring the applicant to be seated at right angles whilst photocopying.
36. In the present proceedings, Dr Mutton provided a report on 4 January 2001 following an examination of 20 December 2000. He found that the applicant had a good range of thoraco-lumbar movement but with a slight decrease in forward flexion to 80 degrees. He found straight leg raising at 70 per cent bilaterally. He noted that the applicant walked without any significant limp or gait disturbance and an MRI of 22 September 1999 demonstrated “very little degenerative changes”. He reported that the applicant did not intend to return to work. It was his opinion that the applicant could work in his pre-injury duties and was not incapacitated from continuing with a return to work program. That report does not contain any history of the applicant’s back having “collapsed” at home in November 2000.
37. Mr Johnson examined the applicant and reported on 7 May 2001 that the applicant suffered the first signs of back pain in 1995 following working in a “twisted position”. The history that he obtained was that the back pain eased but there was a further episode in 1998 and a recurrence in 2000. He reported that the applicant then enquired of him whether the recurrence in 2000 was related to him having sifted dirt at home. He reported that the applicant had complained of continuous low back pain since 2000. He noted that straight leg raising was full and pain free bilaterally and MRI findings showed minor disc degeneration but normal for the applicant’s age. He noted that the applicant did suffer a lumbo-sacral abnormality but he was not of the opinion that it was the cause of the applicant’s complaints of pain. Upon a review of an MRI of 18 May 2001, Mr Johnson reported that a specific injury was not demonstrated and the cause of the applicant’s pain remained uncertain.
38. Mr Williamson examined the applicant at the Alfred Hospital and in a report of 24 May 2001, obtained a history of low back pain which had been worse over the preceding six months. He found a mildly restricted range of movement but with straight leg raising 80 per cent bilaterally. A recent MRI demonstrated a reduction in disc space height at the lumbo-sacral level with a small central protrusion. He reassured the applicant that there was no serious underlying cause of his low back symptoms.
39. Mr Jensen first examined the applicant on 6 September 2001 on referral from Dr Sutcliffe. He obtained a history of the applicant having a fall into a trench in 1994 with back and ankle pain resulting. On examination he found the applicant was tender over the lumbar spine with hypomobility at the thoraco-lumbar junction. He agreed with a radiologist’s findings that an MRI of September 1999 showed an L5/S1 annular tear. In a report of 13 September 2004, addressed to Dr Salib, Mr Jensen reported that the applicant had suffered back pain from March 1995 originating by three months of working in a twisting environment with a further episode of aggravated back pain in 1998. He obtained a history of the applicant’s lower back having “collapsed” in 2000 and queried whether the applicant then suffered from an intervertebral disc injury. He thought the applicant’s complaints were organic in nature and he noted that the applicant was depressed. He concluded that the applicant’s back injury was related to his employment originating from the fall into the trench in 1994 and subsequently aggravated by work. Whilst he thought the applicant would suffer a permanent lumbar spine injury, it was his opinion that the applicant was capable of sedentary employment.
40. Dr Sutcliffe has treated the applicant since 26 June 1998. In a report of 20 February 2004 she reported that the applicant had suffered low back pain whilst performing alternative duties as a consequence of immobility as a result of an ankle injury. She had observed the results of MRIs that had been undertaken and concluded that the applicant suffered a lumbar bulge at L5/S1. She noted that all disc spaces between L1 and L5 were of normal height. She found the applicant suffered from an annular disruption at L5/S1. She did not distinguish in her report between thoracic or lumbar injuries but referred only to the applicant suffering from a “back” injury. She concluded that upon the applicant’s employment history, being administrative and clerical in nature, the “back” injury would prevent him from resuming employment.
41. Mr Shannon provided a report dated 9 August 2004 and gave evidence in these proceedings. It was his opinion that the applicant suffered from a lumbo-sacral disc degeneration which had been temporarily aggravated by his employment. He thought that the applicant exhibited age related degeneration and Scheurmans disease. It was his opinion that the applicant could work in a suitable ergonomic environment.
42. On balance I am satisfied that the applicant does suffer disc degeneration at L5/S1 with a small annular tear, without neural compression, and a small central disc protrusion. The applicant last worked in October 1999. The current claim was made in May 2003. I prefer the evidence of Doctors Mutton, Johnson and Williamson, who all examined between January and May 2001 and the evidence of Mr Shannon who examined in 2004. I am satisfied that the lumbo-sacral disc injury is age related and if there was any relationship between it and the former employment, the effects have long ago ceased. The applicant has consistently demonstrated good range of movement and straight leg raising. Doctors Mutton, Johnson, Williamson and Shannon are senior orthopaedic physicians who all examined independently of each other and, so far as I can ascertain, did not have access to each other’s reports. Whilst the opinions of Mr Jensen of 30 September 2004 are perhaps more pessimistic, he, as did the other doctors, also found that the applicant had a capacity for employment.
43. I thought the report of Dr Sutcliffe was unhelpful. Perhaps she referred to the “back” injury only because the radiological evidence available to her demonstrated L5/S1 injury only.
44. Nowhere in the opinions of these doctors is there any reference to any ongoing or current thoracic injury, nor is there any thoracic injury having any present association or relationship with the lumbar injury or the former employment. I am satisfied on balance that the thoracic injury, for which compensation was recovered, has subsequently resolved. The decision to cease payments for that injury in July 1998, when the applicant resumed employment was appropriate. I am not satisfied that the applicant has suffered subsequently from any thoracic injury.
45. Mr Shannon found that the applicant did have a thoracic scoliosis. Mr Shumack in a report of 29 October 1999 found that the applicant had a slight dorsal kyposis which was non tender. He found that “all back movements” allowed an 80 per cent range of movement without complaint and there was no nerve root irritation affecting the lower limbs.
46. There was nothing to suggest that the kyposis or the scoliosis has any relationship to the former employment. Indeed upon the evidence of Mr Shannon it would appear that the scoliosis is developmental in origin.
47. For reasons given above, any deterioration in the applicant’s back condition would, in my opinion, be age related and being some five years since the applicant last worked, the effects of employment contribution to the back injury have long since ended. I again express, for the reasons given above, that the employment did no more than temporarily aggravate a degenerative process existing in the applicant’s lumbar spine. It should also be noted, a feature which I do not believe is insignificant, that the applicant complained to a number of doctors of his lower back “collapsing” after a period of being seated at home in November 2000. That episode was subsequent to him having moved and, or, sifted soil at home whilst gardening. That episode occurred outside employment and after employment had ceased. That type of activity was consistent with aggravation of pre-existing degeneration and according to the opinion of Mr Shannon, was a history given to him by many other persons who had suffered similar injuries.
foot and ankle injuries
48. In the present application concerning the foot and ankle injuries (V2003/1322) the applicant claimed a “slowly progressing tibialis posterior tendon dysfunction and spring ligament stretching”. That injury was reported as having occurred on 20 June 1994 when he fell into an unguarded excavation at the workplace. The current application proceeded upon the basis that by reason of increased back pain requiring the applicant to stand and walk at a greater degree than previously, he was exposed by weight bearing to a deterioration in his left foot and ankle together with increasing pain.
49. Mr Haydon Morris reported to Dr Sutcliffe on 31 July 2000, that the applicant suffered the injury of “slowly progressing tibialis posterior tendon dysfunction and spring ligament stretching”. That is precisely the description of injury in V2003/1322. That diagnosis, with respect, would appear to have been pessimistic because in a report of 10 August 2004 (following a consultation that day) there was a full range of movement and the tibialis posterior was intact. It therefore appears that any “slowly progressing tibialis tendon dysfunction” had not manifested at 10 August 2004. He also reported that the applicant complained of a “bad back” which he had thought “worsened” his ankle. The opinion of Mr Morris would suggest that the applicant’s ankle and foot was stable. There is nothing which points to any deterioration subsequent to his opinion of 31 July 2000.
50. If the applicant has suffered any increased pain or discomfort in his lower leg associated with increased walking or standing to relieve back pain whilst being seated, the back pain would have to have a continuing association with employment. For reasons given earlier I am not satisfied as a fact that any increased back pain has a continuing relationship to employment. Mr Jensen reported that he did not “thoroughly” examine the applicant’s ankle at consultation in September 2004, but at consultation 2001, there was a full range of ankle motion without evidence of any organic instability. He concluded that if the applicant’s history to him was accepted, the “ongoing left foot and ankle problems” are directly related to the incident (falling in June 1994) and the employment therefore continued to significantly contribute to the left foot and ankle problems. With respect, I dismiss that opinion.
51. The applicant has placed a great deal of reliance upon Dr Sutcliffe in the management of his back and lower leg injuries. Indeed she has treated him since 1998. He sought treatment from her having heard her give a lecture at the Victorian Trades Hall. In her last report of 20 February 2004, she reported that at examination there was a restriction of movement of the left ankle (page 3) and by reason of “persisting ankle pain” she thought that he would be limited in “active employment”. There is no history recorded by her of any complaints of increasing pain by reason of increased weight bearing having an association with the back injury. Accordingly I am not satisfied that any increase in lower leg pain has any association with back injury.
52. The two decisions under review in these proceedings were both a denial of liability to pay compensation. For the above reasons I am satisfied that the applicant does not now suffer any back or any lower leg injury, however described, which arose out of or in the course of his former employment with the Department of Defence. The decision under review by these proceedings should therefore be affirmed.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of
John Handley, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 28 January and 1 February 2005
Date of Decision 22 November 2005
Solicitor for the Applicant Self Represented
Counsel for the Respondent Mr I. Goulay
Solicitor for the Respondent Australian Government Solicitor
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