Smithson and Military Rehabilitation and Compensation Commission

[2004] AATA 1352

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1352

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/311

GENERAL ADMINISTRATIVE DIVISION		)
Re		Heather Smithson

Applicant

And Military Rehabilitation and Compensation Commission

Respondent

DECISION

Tribunal Ms Narelle Bell, Senior Member

Date17 December 2004

PlaceSydney

Decision

The decision under review is set aside and in substitution therefor the Tribunal decides:

(a) The Respondent is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of aggravation of cervical spondylosis;

(b)       In the period 25 December 1998 to the present date, the Applicant had no entitlement to compensation for aggravation of cervical spondylosis under sections 16 or 19 of the Act.

...................................

Ms Narelle Bell

Senior Member

COMPENSATION – cervical spondylosis – aggravation – causation –liability - present entitlement

Safety, Rehabilitation and Compensation Act 1988

Australian Postal Corporation v Oudyn [2003] FCA 318

REASONS FOR DECISION

17 December 2004 Ms N Bell, Senior Member 

2.      Ms Smithson, aged 60, was an Army Reservist from 1976 to 1998.  She reached the rank of Sergeant and undertook catering duties. 

3.      Ms Smithson claimed compensation on 7 March 2000 in respect of an incident on 7 April 1994 in which the lid of a tuckerbox freezer fell and hit her on the back of her neck.  She claimed an injury to her neck. 

4.      On 10 April 2001, the Military Compensation and Rehabilitation Service (MCRS), as it then was, determined that Ms Smithson had suffered an aggravation of cervical spondylosis for which it was liable, but that liability ceased on and from 25 December 1998, the date of her discharge from the Army Reserve.  The MCRS considered that Ms Smithson is no longer suffering from the service-related injury.  The determination was reconsidered and affirmed on 11 September 2001.

5.      There is no dispute that Ms Smithson suffers from a cervical spine condition.  The issue for the Tribunal to consider is the extent to which the incident on 7 April 1994 aggravated that condition.

6.      Ms Smithson’s evidence was that she was in good physical condition on entering the army in 1976.  She drew the Tribunal’s attention to her entry medical history questionnaire.

7.      She noted that she had been treated in the 1970’s and 1980’s by Dr Kumar for migraine and neck pain.  She said the migraine seemed to resolve after she ceased having hormone replacement therapy.  Treatment by Dr Kumar had been raised in a statutory declaration by Ms Smithson’s late former husband.  I note, and accept, Ms Smithson’s evidence that their divorce was not amicable and I weight his evidence accordingly. 

8.      Ms Smithson took exception to a number of statements made by Dr McGill in his report of 3 July 2003 and noted that while she had never been downgraded on medical grounds, the medical examinations she had in the Army Reserve were very superficial and cursory.

9.      She said she does no heavy work on her property and her brother and sister-in-law care for the animals.  She does some housework including hanging washing on a lowered line.  She is able to drive her manual car for up to two hours and is able to do the weekly shopping on her own.

10.     Ms Smithson said that on the day in 1994 when the freezer lid fell on the back of her neck, she went to the Regimental Aid Post, took two Panadol and went straight back to work.  She said that it was no different to any other day.  She said it was the first of three or four occasions on which this happened.  An out-patient clinical record dated 7 April 1994 records that she presented after being struck on the head by the lid of the freezer, that she had a headache at the base of her cranium which arose out of the incident, and that she felt nauseous.

11.     Ms Smithson said that in the 1960’s she suffered a whiplash injury from a motor vehicle accident.

12.     Ms Smithson’s attention was drawn to a medical attendance and treatment report dated 12 July 1990 which noted that she had experienced severe pain radiating down her neck moving to the scapula.  A neck brace was recommended with Naproxen twice a day.  The entry notes that Ms Smithson did not know “how it was done”.  Ms Smithson said in evidence that she thinks her neck may have been hurting because she was doing exams and therefore bending her neck.

13.     Ms Smithson’s attention was also drawn to a report of a Medical Board Examination dated 8 November 1997, in which no mention was made of any neck problems.  Ms Smithson confirmed that she has no outstanding medical expenses and no wage loss.

14.     A report of an x-ray of Ms Smithson’s cervical spine in August 1997 shows there was early posterior osteophyte formation present at C5/6, osteoarthritic changes in the apophyseal joints at C3/4 and C4-6 with osteophytes projecting into the left C4-5 intervertebral foramen from the facet joints.  A MRI scan performed in January 1999 demonstrated narrowing and desiccation of the C5/6 disc with a small protrusion indenting the dural sac.

15.     Dr Neil McGill, Consultant Neurologist considered this change to be degenerative.  Dr Wade King V.M.O in Pain Management, diagnosed chronic cervical spinal pain, possibly stemming from right C2/3 zygapophysial joint impairment and later adopted a diagnosis of aggravation of cervical spondylosis.

16.     On the issue of causation, Dr Wade King, in his report dated 30 August 2001, noted that the onset of symptoms was related to an incident in August 1997 when she bent to pick up a fork, experienced pain in her lower back which later spread to her upper back and neck.  He said that prior to that incident Ms Smithson had had no symptoms at all, although he made mention of her motor vehicle accident in the 60’s and the incident with the freezer lid.  In his later report of 20 April 2002, Dr King stated that Ms Smithson’s neck condition “was precipitated”, by the freezer incident on 7 April 1994.

17.     Dr McGill was of the view that, given that following the freezer incident Ms Smithson did not require time off and it did not lead to any investigation, there is no likelihood that Ms Smithson suffered any injury at that time with the potential to cause an ongoing problem.

18.     Given the history confirmed by Ms Smithson including a whiplash injury in the 1960’s, treatment for neck pain in the 70’s and 80’s, her attendance for severe neck pain in 1990, the apparently minimal effects of the freezer incident and the absence of any reference to neck problems in the Medical Board Examination record of 8 November 1997, I prefer the evidence and conclusions of Dr McGill.  For those reasons I consider that the effects of the injury on 7 April 1994 have not persisted.  I consider that the view of the Respondent that the effects of the injury did not persist beyond 25 December 1998 is generous, but I see no reason to disturb that conclusion.

19.     I note, however, that the decision under review purports to “cease liability” from 25 December 1998 and in so doing offends the principles enunciated by the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318 by purporting to bind the Respondent in respect of any future application for compensation for medical expenses, incapacity or impairment.

Decision

20.     The decision under review is set aside and in substitution therefor the Tribunal decides:

(a)The Respondent is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of aggravation of cervical spondylosis;

(b)In the period 25 December 1998 to the present date, the Applicant had no entitlement to compensation for aggravation of cervical spondylosis under sections 16 or 19 of the Act.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ....[Linda Blue].......................................
  Associate

Date of Hearing  15 November 2004
Date of Decision  17 December 2004
Counsel for the Respondent     Mr G Johnson
Solicitor for the Respondent     Ms J Greaves