Stanley and Military Rehabilitation and Compensation Commission
[2006] AATA 73
•1 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 73
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2003/19
GENERAL ADMINISTRATIVE DIVISION )
Re MARK DAMIAN STANLEY Applicant
And MILITARY REHABILITATION
AND COMPENSATION
COMMISSIONRespondent
DECISION
Tribunal Dr KS Levy, Member Date1 February 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..........[Sgd]...........
KS Levy
Member
CATCHWORDS
COMPENSATION - military service – L5/S1 shallow rights paracentral disc bulge – right side sciatica – application of permanent impairment tables – definition of difficulty – no impairment – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 24, 27
Haugh v Comcare [1999] AATA 906
Comcare v Moon [2003] FCA 569
Comcare v Roser [2003] FCA 243
Comcare v Van Grinsven (2002) 117 FCR 169
Comcare v Fiedler [2001] FCA 1810
Nuss v Comcare [2002] AATA 170
Re Watkins and Comcare (2002) 69 ALD 498
Re Reid and Comcare (1996) AATA 10649
Whittaker v Comcare (1998) 86 FCR 532
Ticsay and Comcare (1992) 15 AAR 316
Comcare v Fiedler [2001] FCA 1810
Comcare v Amorebieta (1996) 66 FCR 83
Re Johnston and Comcare [2000] AATA 970REASONS FOR DECISION
1 February 2006 Dr KS Levy, Member Background
1. Mark Damian Stanley (the applicant) was born on 29 December 1972. He enlisted in the Australian Regular Army on 13 October 1990 and was discharged at his own request in 1996. He re-enlisted for a second period of military service on 13 October 1997 and served until his discharge which was effective on 29 November 2005. Coincidentally, the latter date was also the date of the hearing of this matter.
2. On 4 April 2001 the applicant completed two “Claim for Rehabilitation and Compensation” forms in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The first claim sought compensation for a “back condition” (T3). The second application was made for compensation in relation to “right lower limb – sequela to back” (T4).
3. The respondent considered these applications and by letter dated 13 December 2002, liability was accepted for the condition “L5/S1shallow right paracentral disc bulge with right sided sciatica”. In that letter also, the respondent determined that compensation in form of payment based on 10% Whole Person Impairment would be made pursuant to Sections 24 or 27 of the Act.
4. The applicant’s solicitors requested reconsideration of the determination by letter dated 28 January 2003. That letter accepted that the compensation for the back condition under Table 9.6 could be regarded as settled, but disputed the assessment in relation to the applicant’s right leg sciatica. The solicitors argued that the evidence of Dr Blight would be sufficient to justify a separate assessment of 10% for that condition under both Tables 9.2 and 9.5. That request referred to reconsideration “in relation to his right lower limb to reflect this 10% whole person impairment”.
5. The respondent affirmed its original decision by letter dated 28 February 2003 and indicated Dr Blight’s assessment, which supported a 10% Whole Person Impairment under Table 9.5 related to a left knee condition as well as the applicant’s back and right sciatica condition. The respondent also noted that Dr Blight made no specific comment about the applicant negotiating grades and steps as a consequence of the right sided sciatica and noted that the applicant had passed both his Basic Fitness Assessment (BFA) and Combat Fitness Assessment (CFA) and played nine holes of golf each week. The respondent’s determination was also based on Dr Blight not carrying out any objective testing in relation to grades and steps and preferred the opinion of Dr Homolka. Consequently, the respondent rejected the application for further lump sum compensation in relation to the accepted sciatica.
6. An extension of time for lodging an application for review was granted. On 28 April 2004, the applicant lodged an application for review of the above reviewable decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
7. At the hearing of this matter on 29 November 2005, the following documents were admitted into evidence –
Exhibit 1 -Documents lodged in accordance with Section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents T1 to T25)
Exhibit 2 -Report of Dr David Millons, Consultant Orthopaedic Surgeon dated 15 December 2003
Exhibit 3 -Report of Kristie Thompson, Occupational Therapist and Rehabilitation Consultant dated 12 November 2003
Exhibit 4 -Commissioning letter dated 12 November 2003 from Australian Government Solicitor to Kristie Thompson
Exhibit 5 -Report of Dr John Cameron, Consultant Neurologist dated 3 August 2004
Exhibit 6 -Supplementary report of Dr John Cameron dated 22 November 2004
Exhibit 7 -Statement of Mark Damian Stanley dated 20 August 2003
Exhibit 8 -Service medical records of the applicant (tendered by respondent)
Exhibit 9 -Specialist referral and report by Dr Len Van Ingen to Orthopaedic Specialist
Exhibit 10 - Letter from Australian Government Solicitor to Dr John Cameron dated 22 July 2004 in relation to examination of the applicant
8. The applicant was represented by Mr R King-Scott of Counsel, instructed by D’Arcys Solicitors. The respondent was represented by Mr C Clark of Counsel, instructed by the Australian Government Solicitor.
Issue For Determination
9. It has been determined that the applicant suffers a permanent Whole Person Impairment for a lower back condition. He was compensated at 10% pursuant to Table 9.6 of the Guide to the Assessment of Permanent Impairment, as authorised under the Act. The question for the Tribunal now is whether the applicant is entitled to an additional 20% Whole Person Impairment pursuant to Sections 24 and 27 of the Act, namely, an additional 10% pursuant to each of Tables 9.2 and 9.5 of the Guide in respect of right sided sciatica.
Legislation
10. Section 14 of the Act is a foundation section with respect to this claim. It provides that the Commonwealth is liable to pay compensation in respect of an injury suffered by an employee if the injury results in an incapacity for work or impairment. Relevant terms in Section 14 are defined in Section 4 of the 1988 Act as follows:
“Sect 4
Interpretation
(1) In this Act, unless the contrary intention appears:
….
‘aggravation’ includes acceleration or recurrence.
‘impairment’ means 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.
‘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.
‘permanent’ means likely to continue indefinitely.”
11. Where injuries result in permanent impairment, Section 24 of the Act is relevant and provides as follows:
“24 Compensation for injuries resulting in permanent impairment
(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) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(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) ….
(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.”
Section 27 is also raised by the applicant. This section provides:
“27 Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 X A) + ($15,000 X B)
where:
Ais the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
Bis the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
Evidence
§ Evidence of Mark Damian Stanley
12. The applicant’s statement of 29 August 2003 (Exhibit 7) was affirmed as being true and correct.
13. The applicant gave evidence about his back injury which occurred in 1998. He worked for three weeks after that accident at which time the pain was constant and was further exacerbated if he had to bend or twist. The applicant stated he was admitted to hospital five or six times and was given morphine. He saw Dr Baddeley on the first occasion and was given joint injections of cortisone on a Friday morning. He was discharged from hospital on the afternoon of that day and was relatively pain-free for the remainder of the Friday and the next day. On the Sunday morning following, as he got up from a lounge chair, he was in severe pain again and his wife had to take him to hospital where he stayed for three or four days. On other occasions, for example, he would be in pain as he got out of the car. He recalls his wife having to carry him from the car on one occasion, after which he remained in bed for days afterwards.
14. On other occasions, the applicant stated that his sciatica pain was constant and the only relief he got was from lying on his stomach. If the pain was really bad, he would take painkillers.
15. In relation to his knee injury in 2000, he had left knee surgery nine months later and had a tight hamstring muscle following that surgery. The applicant is concerned about walking up steep inclines and is concerned about the impact on his left knee and whether he might fall.
16. The applicant stated that he no longer plays golf. He found in 2002 that it aggravated his back condition. He said he now does not play sport.
17. Counsel for the applicant, Mr King-Scott, questioned him about his referral to Ms Kristie Thompson, Occupational Therapist and Rehabilitation Consultant. The applicant indicated he had difficulty during that assessment with inclines and other tests owing to right side sciatica.
18. The applicant was also examined by Dr John Cameron, Neurologist. During his consultation with Dr Cameron, he advised he had undertaken a 15 kilometre walk for his CFA two weeks earlier. He advised that he was able to walk the distance with regular stops and that he had consulted the RAP before this assessment. At one stage, the applicant said he stopped for 15 minutes and sat on the ground and lay down to stretch. He advised that he had not passed that assessment. A doctor had subsequently noted his medical records that he should not wear a pack; he should walk no more than 5 kilometres; and that he should have physiotherapy and hydrotherapy three times per week.
19. In a self-assessment of pain on a 10 point scale, the applicant told Mr King-Scott that his pain level would be 3 or 4 during the day; 8 or 9 after seven sets of stairs; and 8 or 9 after a 15 kilometre walk.
20. The applicant has now been discharged from the Army. He stated that he was discharged at his own request as he could not do what the Army wanted him to do. His work as a Transport NCO was mainly clerical although he had to walk around the transport compound and his pain level would be worse at the end of the day. He is now planning on starting his own business involving clerical work and where he can minimise the amount of walking and climbing stairs. He referred to a previous test where he had been required to do 10 sets of 10 stairs and he was stopped after seven sets because of the sciatic pain in his right side.
21. He rated his various ailments In priority of pain as follows:
(i) sciatica;
(ii) lower back; and
(iii) his left knee.
22. Under cross-examination by Mr Clark, the applicant stated the sciatica commenced six months after his back injury. As a result, he stated he had not played golf since 2002. On further questioning by Mr Clark, the applicant stated that he had not played 18 holes for a long time; he had not played 9 holes since 2002 but he had done 1 or 2 holes and then walked around the remainder of the course with friends. He said the last time he did this was 2003. When asked the last time he walked around the golf course, he said he had never walked around 18 holes and in fact he had never walked around 9 holes. He usually got a buggy so that he did a minimum of walking. He confirmed that he had never walked around the golf course and admitted what he had previously said was wrong.
23. In relation to his visit to Dr Cameron, under cross-examination, the applicant stated that in relation to the 15 kilometre walk that he did not tell the doctor all of the details. He initially said he took painkillers but on further questioning said that he could not remember whether he told him or not. He did tell the doctor about the recent assessment of climbing ten sets of stairs and being stopped after seven sets. It would hurt after two or three sets but he could continue without difficulty, or at least he could do it.
24. In relation to playing football, the applicant stated he stopped playing rugby union in 2000 when he injured his left knee. He also then said that he had not played a game of football since he had hurt his back (in 1998). However, he subsequently saw a specialist who advised him to stop contact sports. The applicant tried to play one game of touch football before his knee injury but had not played football otherwise since he hurt his back.
25. In discussing his examination by Dr Blight, he was referred to page 3 of her report of 4 March 2002 (T12, Folio 29). His evidence was that his knee injury was better after six months than it had been previously but it was having an adverse effect on his CFA. He said that it limited his ability in undertaking the CFA. His left knee was still giving a problem but did not stop him like the pain in his back, which was greater. The left knee was affecting his ability to go up and down stairs in 2002 but he said at present he could still go up and down stairs comfortably. He was also referred to page 4 of Dr Blight’s report (Folio 30) where it indicated that he was still playing 9 holes of golf in February 2002. The applicant said that he stopped about then or after the Army Sports Day in 2002.
26. The applicant noted a report by Dr Homolka and at page 2 of that report (T17, Folio 55) it was reported that:
“He stated that he accordingly persevered with conservative treatment, and reported that he gradually improved with the passage of time to a point where, about two years ago, his residual symptoms stabilised.”
27. On page 3 of that report (Folio 56), Dr Homolka noted that he had complained of pain with activity “…such as bending, lifting and twisting…”. The applicant also reported to the doctor that “…overall his right sciatica is significantly more of a problem to him that his residual lower back pain”. It was also noted that he completed his BFA in April 2002, although he required two or three days of rest to recover afterwards. His last CFA had been undertaken in 2000.
28. The applicant was also referred to the Army medical records now admitted as Exhibit 8. These records showed the following –
(a)November 1999 - The applicant stated he was playing football (see Dr Baddeley’s report 11 February 2000).
(b)January 2000 - The periodical Medical Board Examination Record. It was noted that there were no problems with his back. He had passed a BFA and a CFA in August 1999. In January 2000 he was classified as Class 1.
(c)11 February 2000 – Dr S Baddeley stated that after having facet joint injections in 1999: “He is having little back problem at the present time”. That report also noted that he was playing football in November 1999 but later played touch football.
(d)21 January 2001 – The medical report noted in Item 35 “Lower extremities” that it was assessed as “Abnormal”. The applicant indicated that this was knee pain. In the “PULHEEMS Assessment” the applicant scored 7 out of 9 for “Locomotion”. However, in Item 36 “Back”, that was assessed as “Normal”.
(e)18 April 2001 – A letter was forwarded from the applicant’s sub-unit Commander OC 1CSSB to request a waiver for the applicant to deploy to the Wide Bay training area during brigade exercises. The sub-unit Commander noted that the applicant had had a knee operation in October 2000 and that he had almost fully recovered from that operation “with success and no longer requires physio treatment”. That request was supported by the Regimental Medical Officer.
(f)23 July 2001 – Form AD 147 – Comprehensive Preventive Health Examination. On page 1 of this form under the section “Patient to complete”, in response to the question “Have you had any persistent back or joint pain?”, the applicant answered “No”. In relation to the question “Do you have any current medical illnesses or injuries?” the applicant answered “Yes”. He provided further particulars as “Knee Reconstruction Done 4th Oct 2000”.
Page 2 of 7 – In relation to “Exercise” the applicant stated that he undertook exercise “When possible 5 days a week”. In relation to the types of exercises that he did, he ticked the following selections:
Sport, Gym, Unsupervised or Individual, and Other (to which he explained in evidence as being running and walking).
He reported that he did this for 5 hours per week and in oral evidence amplified this by saying that this was 1 hour of PT each morning.
Page 3 of 7 – In cross-examination, the applicant admitted that he had signed this form acknowledging this record.
Page 4 of 7 – It was noted that the medical officer had noted his “Lower extremities” as “Abnormal” and that his “Spinal system” was “Normal”.
Page 5 of 7 – The medical officer’s assessment was that he had some medical restrictions but could do PT at his own pace and could undertake BFA and CFA. The “PULHEEMS Assessment” noted an assessment of 3 for “Locomotion”. This was a significant improvement from the rating of 7 in January 2001 (six months earlier).
The applicant stated that this examination was a reconsideration of his medical condition as a result of his knee operation and this is generally undertaken only when a soldier has a medical assessment of Class 3. However, he stated that he was still having back and leg problems up to that day. He emphasised that this form was only considering the results of his knee condition and knee operation, notwithstanding the comments about back or joint pain.
(g)25 February 2002 – This was an Outpatient Clinical Record. It noted the applicant had a knee reconstruction 18 months previously and was then doing BFA/CFA within time. It also stated “Doing PT with unit – no problems; playing touch footy”. It indicates he had been back 4-5 months.
In cross-examination about this record, the applicant said he had played touch football about 30 times. This was in a context of what was required of him during PT parades.
(h)5 February 2003 – an Annual Health Assessment. It stated “No current illness”; “No current injuries”. These were records made under the heading “Patient to complete”. Mr Clark drew to the applicant’s attention that he had made no reference at that stage to any problems with his back or leg. It is also noted on page 3 of that assessment that in terms of his Personal Health Summary, he undertook 5 x 40 minute sessions of physical activity each week.
(i)February 2004 – There is a specialist’s referral about the applicant’s left knee, about further experiences of pain.
(j)February 2004 – Annual Health Assessment for 2004. Again, the applicant had noted no current injuries or illnesses.
(k)July 2004 – Medical Employment Classification Review Record. This was a periodic assessment to review the applicant’s knee and back injuries. It was noted there that the applicant –
(1)still has problems walking up and down stairs and on uneven terrain;
(2) lower back pain – no motor power deficit. Only intermittent sciatica.
Comments on function disabilities were –
(1) Cannot run more than 900 metres due to knee.
(2) Should not carry heavy loads due to lumbar disc lesion.
(l)27 July 2004 – Confirmed medical determination in relation to his PES had the following restrictions –
“PT own pace; BFA run exempt; No RDJ; No Pack; No heavy lifting over 15 kg.”
(m)14 February 2005 – Annual Health Assessment 2005. The applicant noted “No current illnesses”. In relation to “Current injuries” he answered “Yes” and provided details as follows – “Disc bulge in lower back”.
29. Mr Clark also referred the applicant to his physical ability in February 2004. He noted there he could walk for 40 minutes or 5 kilometres. He asked whether the applicant could still do 5 kilometres to which he replied “until it hurts – it depends on what he does the day before”.
30. In re-examination, the applicant stated that when he referred to his back or back pain, he was referring to his back and sciatica pain together. In relation to Exhibit 8, an extract of the applicant’s Army medical documents, he stated that he did not see any of these, at least not what the medical officer recorded on them. Further, in relation to the Form AD 147 – Comprehensive Preventive Health Examination – the applicant stated that he would have answered the doctor and said that his spinal system was normal as he would have been worried about being “kicked out” of the Army. In relation to the medical restrictions that he could do BFA and CFA, the applicant said that he would not have seen this page.
Medical Specialist Evidence
31. There were reports from five medical specialists provided to the Tribunal. Those were Dr S Blight, Rehabilitation Physician (4 March 2002); Dr S Homolka, Occupational Physician (1 November 2002); Dr D Millons AM, Consultant Orthopaedic Surgeon (15 December 2003), two reports from Dr J Cameron, Neurologist (3 August 2004 and 22 November 2004) and a report by Dr Michael Redmond, Neurosurgeon (7 March 2005). Drs Blight, Homolka and Cameron gave oral evidence at the Tribunal. Dr Millons was not called by either party, nor was Dr Redmond.
32. The medical history provided by the medical specialists was consistent. It noted that the applicant had a fall in Darwin in July 1998 when tying a rope on a truck and fell 10 feet and landed on his tailbone. There was local bruising initially. Three weeks later the applicant reported pain in his lower back and spreading to his right leg. While he worked without difficulty for the first three weeks after the accident, pain then gradually spread to his right buttock, behind the right thigh, and continuing to the knee and subsequently to the foot. He has reported numbness and tingling in the toes of the foot and, on occasion, the whole foot feels cold.
33. It was reported that he had had facet joint injections whereupon he got two day’s relief. He had been hospitalised on a number of occasions and put on a morphine drip. He has had physiotherapy and traction. The examinations by the doctors reveal the following –
§ Dr Suzette Blight
34. On examination, Dr Blight said the applicant had lumbar spine forward flexion to his mid-calves. Lateral flexion was normal and rotation to both sides was approximately two-thirds of the normal distance. His straight leg could be raised 700 on the right and to 700 with the left leg. In respect of the left leg, it was reported that there was weakness in the quadriceps due to the left knee injury. It was also reported that he could squat to half the normal range and was unable to kneel on his left knee.
§ Dr Susanne Homolka
35. Dr Homolka’s examination revealed his gait was normal; he had lower back pain when undertaking a toe and heel walk; he could squat to half-range only; he could not hop on his left leg due to left knee injury but could hop on his right leg satisfactorily although he complained of lower back pain. Dr Homolka observed that the applicant could climb 20 steps with no difficulty. She also noted that in relation to his lumbo-sacral spine, he had good posture, there was equal body weight distribution to both legs and well-preserved lumbar lordosis.
§ Dr David Millons
36. Dr Millons reported that the applicant tended to sit uncomfortably on the chair and leaned more to the left. He reported that the applicant’s cervical spine and upper limbs were normal, and that he stood with his weight more on his left than his right leg. He was able to bear weight on his right leg and he had a normal heel/toe gait when walking. When he walks on his heels he complained of pain in his back.
37. On flexion forward, the applicant could bring his fingertips to his knees though he complained of some lower back pain in that position. Lateral flexion to the left was one-third of the normal range and to the right was one-half of the normal range. More pain was caused by tilting to the left than to the right. There was no referred pain in the right lower limb.
38. Straight leg-raising to the left was 750. Straight leg-raising to the right was 450 with complaint of lower back pain and pain down the back of the right thigh. Sensation through the lower limbs was normal. The right lower limb joints were normal to examination as was the left hip.
39. Facet joint blocks not long after the injury were reported to Dr Millons as not bringing any real down-turn in his symptoms.
40. Dr Millons concluded that Mr Stanley does appear to have some problems with his right lower limb, stemming from his back injury in 1998. He regarded it as a permanent impairment.
§ Dr John Cameron
41. On examination, Dr Cameron observed the applicant’s gait was normal; muscle tone and strength in the lower limbs was normal; he could get out of a chair; but he could not squat. He could barely lumbar flex, reaching only to his knees; back extension, rotation and lateral movement were mildly restricted; he had straight leg-raising restriction to 600 on the right leg with no restriction on the left leg. There was no right ankle jerk movement. He had altered sensation over the L5/S1 distribution to the right leg. The CT scan of the lumbar spine in 2 July 2004 revealed a right L5/S1 disc bulge and osteophyte formation compression on the right sided S1 nerve root. Dr Cameron said he had a developmentally small lumbar canal in the lower lumbar segments.
42. Dr Cameron concluded that the cause of the applicant’s injury was a pre-existing degenerative disc L5/S1 which was not service-related but that the fall which he experienced in 1998 could have aggravated this and therefore it is service-related. He also concluded the applicant had the following physical abilities –
(i) he could rise to the standing position without restriction;
(ii) he could walk;
(iii) he could negotiate grades and steps;
(iv) he did a 15 kilometre walk two weeks previously.
43. When considering the relevance of Table 9.2, Dr Cameron said that he had full movement of the lower limb joints but that he had some restriction to straight leg-raising (to 700). However, he said that his present condition was due solely to nerve root pain, and not to any restriction of the right hip joint function.
44. In relation to the right sided sciatica, Dr Cameron expanded on his assessment. He said that while sciatica leads to discomfort, it results in a person having to slow down the pace of their activity but should not preclude the applicant from doing distance. That is, he did not see any difficulty in the applicant doing the same distance he otherwise might have done, but it might just have to be done more slowly. Likewise, he should be able to walk up an incline or stairs, but again, would have to undertake that more slowly. In relation to whether the applicant was able to walk longer distances (for example, the 15 kilometre walk in his CFA), because he had taken painkillers, Dr Cameron said that the painkillers would not enable him to walk longer, although they would dull the pain along the way.
45. Dr Cameron also said that the only problem which would interfere with his ability to walk the required distance for the BFA, would be if he had a lumbar spinal stenosis, which is a narrowing of the spinal canal. He stated that there was no evidence of this in Mr Stanley.
46. Under cross-examination, Dr Cameron displayed a high degree of familiarity and competence with the request he received from the Australian Government Solicitor and understood the requirements asked of him without reference to any material. He said that pain was not relevant to the assessment. He also reiterated that walking of itself would not necessarily exacerbate pain. He said this would only be exacerbated if there was a spinal stenosis. This would be aggravated if, for example, the applicant was forced to climb stairs at an accelerated rate in which case, pain would ensue. Otherwise, extra walking would cause minimal extra pain. He acknowledged, however, Mr King-Scott’s suggestion that some people have different levels of tolerance for pain.
§ Dr Michael Redmond, Neurosurgeon
47. Dr Redmond provided a written report dated 7 March 2005. He reported that pain in his right leg is treated “satisfactorily” with physiotherapy. On examination, he found the same degree of mobility of the legs as Dr Cameron. He commented there was no weakness and no sensory loss. He noted the CT scan showed a right L5/S1 bulge. He concluded that he would not perform surgery on him and that his current treatment was appropriate.
Submissions
48. Mr King-Scott for the applicant submitted that as Dr Millons did not provide oral evidence, then appropriate weight should be given to his report. He argued that it is the applicant’s submission that he should be entitled to an assessment of 20% in respect of the applicant’s right leg sciatica under Table 9.5. He referred to the report of the Occupational Therapist, Ms Kristie Thompson; and to Dr Millons’ conclusions that the applicant should be entitled to 10% under Table 9.5 and 10% under Table 9.6 Whole Person Impairments. He referred to the assessments by Dr Cameron who concluded that the applicant could rise to a standing position without restriction and could negotiate grades and steps. He noted Dr Cameron had assessed the applicant under Table 9.5 as having a 0% impairment of the lower limb.
49. He also submitted that the applicant had been unable to complete the 15 kilometre walk referred to by Dr Cameron because of sciatic pain and he failed that assessment. He also noted that before he was discharged, the applicant had the following restrictions on his activities –
§ PT at own pace;
§ BFA – running exempt;
§ No run, dodge, jump exercise;
§ No pack;
§ No heavy lifting over 15 kilograms.
50. In relation to sciatica, Mr King-Scott referred to notes in Table 9.6 which indicated neurological consequences of lesions of the spine should be assessed under Table 9.4 or 9.5. The Tribunal was referred also to Haugh v Comcare [1999] AATA 906 as being a case with a similar injury and similar consequences.
51. Mr King-Scott also referred the Tribunal to Whittaker v Comcare (1998) 86 FCR 532 where it was held by the Federal Court that Tables 9.2 and Table 9.5 are mutually exclusive. However, he also referred to the possibility of Tables 9.6 and 9.5 co-existing and that the combined values Table could be applicable in those circumstances.
52. A further submission was made that where there was an ambiguity then the applicant was entitled to the most generous construction as the Act was socially remedial legislation and therefore the interpretation most beneficial to the worker should be given to it (Whittaker’s case (supra)).
53. Mr King-Scott submitted that the fact that the applicant had been required to negotiate grades or steps, or walk distances, did not mean that he did not have difficulties with those activities (see Comcare v Moon [2003] FCA 569). It was also submitted that the medical evidence showed that the applicant not only had difficulty with grades and steps, but also with distances.
54. Mr King-Scott argued that in relation to decisions which the respondent referred to the Tribunal, namely, the cases of Watkins, Nuss and Carmen, that all of these were decided before Comcare v Moon (supra) and, if there was an inconsistency, then the latter decision should be followed. He also urged the Tribunal that, given the instruction letter to assessing doctors (see for example T15, Folio 47), which specifies the differentiation of pain versus difficulty, pain should not be taken into account at all.
55. Mr Clark for the respondent argued that to conclude that the applicant was entitled to 20% under Table 9.5, would result in relying on the applicant’s evidence not the medical evidence. He argued the applicant’s credibility did not justify this. He also argued Dr Blight was one of the specialists to support him and that she had not seen him since 2002.
56. Mr Clark also referred the Tribunal to Comcare v Roser [2003] FCA 243 as an authority later than Comcare v Van Grinsven (2002) 117 FCR 169 which was referred to by the applicant’s Counsel. In relation to the legal principles, however, Mr Clark referred the Tribunal to Comcare v Fiedler [2001] FCA 1810 in relation to the meaning of “difficulty”. He also referred to Nuss v Comcare [2002] AATA 170, to page 255 of the 6th Edition of Ballard and Sutherlands Annotated Act and its reference to Re Watkins and Comcare (2002) 69 ALD 498.
57. Mr Clark also argued that the left knee injury was making a contribution to the right leg impairment. He also submitted that the Tribunal must consider the evidence in context and that the applicant’s service medical records are essential to that assessment.
Findings Of Fact
58. The following findings of fact are made.
(i)While not directly related to the applicant’s claim, the applicant suffered a knee injury to his left knee on 30 March 2000 in a motor cycle accident whilst on duty in the Army. On 4 October 2000 he had a knee reconstruction. On 21 July 2001 the applicant had a further knee injury to his left knee. The applicant was still experiencing pain in 2004 and was referred for specialist opinion in relation to this injury.
(ii)The applicant incurred a back injury on 2 July 1998. After three weeks, he commenced experiencing pain from his lower back through the buttock, leg and foot. The pain and management of that condition continued from 1998 through to late 2002 when there was some stabilisation of that condition.
(iii)The applicant continued to play golf until 2002 and played touch football intermittently until 2002.
(iv)The applicant now has a permanent injury due to L5/S1 disc region which has been exacerbated by the fall in 1998. The applicant had disc protrusion subsequent to the injury, causing S1 nerve root compression in his lower back.
(v)The applicant has had two left knee injuries which also convolute the symptoms, pain and mobility difficulties suffered by the applicant.
(vi)There has been a progressive downgrading of his health status by the Army from at least February 2004 until his discharge in late 2005.
Consideration
§ Diagnosis
59. There is relative consistency in the diagnosis proffered by the four specialists concerned. Dr Blight diagnosed a right paracentral disc bulge at L5/S1, irritation of the right S1 nerve root causing the applicant to have sciatica. She said it was permanent from July 1999. She said there was a direct causal link to his military employment.
60. Dr Homolka diagnosed Mr Stanley with a right sided L5/S1 disc prolapse associated with intermittent irritation of the right S1 nerve root resulting in right sided sciatica.
61. Dr Millons said there is evidence of right sided nerve root irritation and some neurological deficit as witnessed by the absent right ankle jerk. He also said Mr Stanley “does appear to have some problems with his right limb which reflects his back problem, injured in the fall in 1998”.
62. Dr Cameron’s diagnosis is a disc protrusion subsequent to the injury causing S1 nerve root compression on the lower back. This is due to a degenerative disc at L5/S1 level. He said the right leg findings are secondary to the back problem and that any restriction to the lower limb joints is due solely to nerve root pain, and not to any restriction of the right hip joint function.
63. There is some degree of consistency in the diagnoses of the doctors in this case. However, based on Dr Cameron’s credibility as a witness, his speciality as a neurologist and the greatest recency of his examination together with the practical examination undertaken by him, the Tribunal finds that it prefers the opinion of Dr Cameron to the other specialists. I therefore accept that the diagnosis for the applicant’s condition is as stated by Dr Cameron, an S1 nerve root compression on the lower back; that the right leg findings are secondary to the back problem; and that any restriction of movement is due solely to nerve root pain and not to any restriction of the right hip joint function. I also accept that the applicant had a pre-existing degenerative disc L5/S1, and that the fall while in the army in 1998 has aggravated this condition.
§ Assessment Of Claims
64. In accordance with the various Tables of the Guide, at the outset it is useful to identify the conclusions of the four medical specialists in relation to the applicant’s claims and as they relate to Tables 9.2, 9.5 and 9.6. These are set out in the table below:
Table 9.2
Table 9.5
Table 9.6
Dr Blight
10%
10%
10%
Dr Homolka
__
0%
10%
Dr Millons
0%
10%
__
Dr Cameron
0%
0%
10%
65. The applicant contends that he is entitled to compensation of 10% Whole Person Impairment under Table 9.2 and 10% under Table 9.5 i.e. a further 20% Whole Person Impairment compensation. The respondent contends that the applicant has been compensated for the injuries claimed in the 10% Whole Person Impairment already granted under Table 9.6, and is not entitled to any further lump sum.
66. In considering these claims, the relevant parts of the Guide to the Assessment of the Degree of Permanent Impairment issued by Comcare Australia under Section 24 of the Act are as follows:
“Principles of Assessment
Impairment and Non-Economic Loss
Impairment means ‘the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function’….Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person. The measure of ‘activities of daily living’ is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.
….
The Impairment Tables
Part A of this Guide is based on the concept of ‘whole person impairment’ which is drawn from the American Medical Association’s Guides.
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and activities of daily living.
As with the American Medical Association’s Guides, Part A of this Guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this guide.
….
Combined Impairments
It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function. When more than one table applies to a single injury separate scores should be allocated to each functional impairment. Where two or more injuries give rise to the same impairment a single rating only should be given.
Double Assessment
The possibility of double assessment for a single loss of function must be guarded against. For example, it would be inappropriate to assess a lower limb amputation by reference to both the amputation table (9.3) and the lower extremity table (9.2) in Part 2, Division 1 of this Guide.
Where an employee suffers from more than one impairment the values are not added but are combined using the Part 2 Combined Values Table. The purpose of this table is to give the total effect of all impairments, according to a formula, as a percentage value of the employee’s whole bodily system or function.”
Section 9 – Musculo-Skeletal System - Under this section of the Guide, there are six Tables. However, at the start of Table 9.1, the introductory paragraph reads as follows:
“Upper Extremity
(Percentage Whole Person Impairment)
Introduction - These tables are intended to be used to assess impairment arising from specific joint lesions or amputations. Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 9.5 should be used. These Tables can be used to assess the impairment of overall limb function from any cause. NOTE: either the musculo-skeletal table or Table 9.4 or 9.5 should be used - not both.
….
NOTE : Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1).”
67. It is apparent, therefore, that this introductory section refers to all of the Tables in Section 9. The Tables are –
Table 9.1 Upper Extremity
Table 9.2 Lower Extremity
Table 9.3 Amputations and/or total loss of function
Table 9.4 Limb function – upper limb
Table 9.5 Limb function – lower limb
Table 9.6 Spine
68. Reading the introductory section together with an examination of the Tables, Tables 9.1 or 9.2 refer to the musculo-skeletal functions and cannot be assessed cumulatively with Table 9.4 or Table 9.5 as well. This accords with the note on “Double Assessment” as referred to above. Therefore, where there is more than one impairment, the Combined Values Table in Table 14 should be used, rather than merely adding the values together.
69. In relation to the applicant’s claims, Table 9.2 is to be used for assessment of joint function. Table 9.5 refers to a global assessment of impairment of overall limb function (see Re Reid and Comcare (1996) AATA 10649). The neurological consequences of spinal lesions should be assessed under Table 9.5. Table 9.6 deals with the spine. The applicant’s submission was that a claim could be considered under Table 9.2 or Table 9.5, but it could not be considered under both (Whittaker v Comcare (1998) 86 FCR 532). I agree with that submission. Whittaker’s case also held that where two Tables could be applicable, any ambiguity should be resolved so that the employee has the benefit of the most favourable result. The Court in that case adopted the approach set out by Olney J in Ticsay and Comcare (1992) 15 AAR 316.
70. To qualify for entitlement to compensation for permanent impairment, the applicant must satisfy section 24(7) of the Act. There was relative consistency amongst the various medical specialists that the applicant suffers a permanent impairment and that he has a right sided sciatica. However, Mr Stanley is still required to meet the 10% threshold before he is entitled to compensation. As can be seen above, the four doctors all agree that the applicant should be compensated under Table 9.6 at the rate of 10% Whole Person Impairment. However, there was no agreement under Tables 9.2 and Table 9.5.
71. Mr King-Scott for the applicant argued that in accordance with the Note to Table 9.6, any neurological consequences of the spine should be assessed using Table 9.4 or Table 9.5 and the results combined using the Combined Values Table. He also referred the Tribunal to Haugh v Comcare (supra) and submitted that in that case, there was a determination under Tables 9.6 and Table 9.5 “in respect of a similar injury with similar consequences”. The Tribunal has examined that decision.
§ Table 9.2 – Lower Extremity
72. If this Table were to be applicable to the applicant in respect of a 10% Whole Person Impairment, he would need to show that he had a “…loss of less than half normal range of movement of hip or knee”. While a right sided sciatica has been acknowledged by all of the medical practitioners, neither Dr Blight nor Dr Homolka relate the sciatica to a loss of the range of movement of the hip or knee. Dr Millons said that “it does not appear to be relevant, there being a full range of movements at all joints of the right lower limb”. Dr Cameron states there is full movement of the lower limb joints and while the straight leg-raising was restricted to 70%, he specifically says that the restriction is due solely to nerve root pain and not to any restriction of the right hip joint function. I therefore accept the opinions of both Drs Millons and Cameron in relation to the relevance of Table 9.2 and conclude that the applicant has a 0% impairment of the lower limb according to the definitions of that Table.
§ Table 9.5 – Limb Function – Lower Limb
73. Althoughs the claim under Table 9.2 has not been satisfied, the applicant is not precluded from claiming under Table 9.5. To be successful for a claim under Table 9.5, the applicant would have to demonstrate the following level of impairment:
o 10% - can rise to standing position and walk BUT has difficulty with grades and steps
o 20% - can rise to standing position and walk BUT has difficulty with grades, steps and distances
74. In respect of whether Mr Stanley could rise to stand, I note the report of the Occupational Therapist, Ms Kristie Thompson (Exhibit 3). She said:
“Mr Stanley was observed to require the assistance of the left chair arm to rise from a seated position to a standing position.”
75. Neither Dr Blight nor Dr Homolka made similar comments during their examination. In respect of Dr Cameron’s examination, he merely stated the applicant could get out of a chair. After examination by Ms Thompson and four medical specialists, her report was the only one to note difficulty in rising to the standing position. On the balance of probabilities, I have concluded that the applicant does not have difficulty rising to a standing position.
76. In relation to whether the applicant experienced “difficulty” with grades, steps and distances, “difficulty” was considered in Comcare v Fiedler [2001] FCA 1810. At paragraph 22 the Court considered various dictionary definitions of the word “difficulty”. According to the Oxford English Dictionary 2nd Edition, it is said that:
“It connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out.”
77. It therefore requires more than minimal problems and will involve a person, as a result of his injury, finding it troublesome to undertake various tasks. In relation to Table 9.5 specifically, in Re Watkins and Comcare (supra) at 500, the Tribunal discussed “difficulty” in relation to grades and steps and said, inter alia:
“…Before there can be a finding that there is difficulty in performing a task because of pain, weakness or some other factor, there must be some objective manifestation of that pain or weakness which reveals the difficulty. To find otherwise would be to equate pain or weakness with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle affects for assessment under non-economic loss.”
78. Mr Clark for the respondent argued that that is the correct position at law. However, Mr King-Scott submitted that Comcare v Moon (supra) is a more compelling authority. He referred the Tribunal to paragraph 45 where it was said that where pain cannot be seen to restrict or cease a physical activity, it cannot be seen to be an “impairment” in Table 9.5. That case also, however, discussed Comcare v Amorebieta (1996) 66 FCR 83 where Jenkinson J differentiated “voluntary restriction of movement evoked by the onset of pain” and a restriction “…in order to prevent the onset of pain”, (Emphasis added by Tribunal).
79. In Moon’s case, the Federal Court acknowledged Amorebieta’s case (supra) as being authority for the proposition that “voluntary restriction of movement evoked by the onset of pain” may be evidence of an impairment sufficient to indicate “difficulty” for the purpose of Table 9.5. If that definition is satisfied, then “impairment” in Section 24 would also be satisfied.
80. Mr Clark also urged the Tribunal that the applicant’s evidence should be treated with some caution. In fact, he suggested there was some prevarication. I accept he was unconvincing in relation to his sporting activity and/or the impact of the left knee problems on his back and right leg problems. His oral evidence was at times inconsistent and the service medical records are not wholly corroborative of the applicant’s claims. For example, the applicant stated he had not played golf since 2002 and under cross-examination said that he had not played 18 holes for a long time. He then said he had not played 9 holes since 2002. Shortly afterwards he told the Tribunal he had played 1 or 2 holes and then just walked the rest of the course with friends. He later said he usually got a buggy and only had to walk to the buggy and not around the whole course. A short time later again he corrected himself and said that he never walked around the course and admitted that what he previously said was wrong.
81. In relation to playing football, the applicant said he stopped playing football when he hurt his knee in 2000. He also said that he had not played a game of football since he hurt his back (in 1998). He also said that he played touch football once before his knee was hurt in 2000. He later admitted that he had played touch football while doing PT. In fact, he said he had played touch football 30 times in that context. However, this was in 2002. I also note that he had completed his BFAs and CSAs in 2002 and completed them within the time allowable.
82. The Tribunal accepts that Mr Stanley has sciatica and that he undoubtedly experiences some pain. However, the inconsistency in some of his oral evidence was not helpful to his credibility.
83. The applicant’s service medical records show that in January 2000 at his Periodic Medical Board examination, it was stated that there were no problems with his back. In fact, he was categorised as fully fit (Class 1 PES) at that time. On 11 February 2000, a report by Dr S Baddeley said that Mr Stanley “…is having little back problem at the present time”. He also noted the applicant was playing football in November 1999 (contrary to evidence he had given elsewhere).
84. The Tribunal also noted in a report dated 23 July 2001, a Comprehensive Preventive Health Examination (Form AD 147) was carried out and the applicant in the section completed by him said that he had no persistent back or joint pain. He referred only to his current injury relating to his knee reconstruction in October 2000.
85. Other medical records show that in the annual health assessments in February 2003, February 2004 and February 2005, the applicant indicated that he had no current injuries or illness. On each of those annual assessments, he never raised any query that he had any serious concern about his lower back pain or his sciatica in particular. The only record which refers to his back pain or sciatica was in July 2004 when he undertook the medical employment classification review. He noted there that he had problems going up and down stairs and on uneven terrain; and in respect of his lower back pain, it was said that there was “no motor power deficit – only intermittent sciatica”. There is also reference to his being unable to run more than 900 metres due to his knee condition and that he should not carry heavy loads due to his lumbar disc lesion.
86. In considering the “difficulty” the applicant experiences, this must be seen in the context of what would be regarded as a degree of normalcy for a person of 31 years of age and in the applicant’s condition. There was evidence that he could walk freely for 5 kilometres; that he could walk up stairs as Dr Homolka reported; and there was no evidence of his having difficulty with slopes other than the applicant’s own evidence. In Re Johnston and Comcare [2000] AATA 970, an applicant who could walk 2 kilometres before experiencing pain was not a “difficulty” with respect to Table 9.5. A similar situation occurred in Nuss and Comcare [2002] AATA 170. In the circumstances of this case, taking account of medical specialist reports, the Army medical records and the applicant’s own testimony, I do not find there is “difficulty” with grades, steps and distances.
87. I note Drs Blight and Millons concluded that the applicant would satisfy the 10% level for impairment under Table 9.5. Drs Cameron and Homolka concluded that the applicant had a 0% impairment under Table 9.5. None of the medical specialists suggested that there was a 20% entitlement under that Table. I note however Dr Blight did not carry out any objective testing in relation to grades and steps and Dr Millons was very general in his description of why he thought such an entitlement existed. As suggested by Mr King-Scott, the Tribunal should take care in the amount of weight which can be placed on Dr Millons' report.
88. The Tribunal concludes that the evidence of Dr Homolka and Dr Cameron is to be preferred. Both of those specialist medical practitioners recommended a 0% Whole Person Impairment rating under Table 9.5. Dr Homolka carried out objective testing and said that there was no difficulty in negotiating stairs. However, her report was somewhat convoluted with reference to the impact of the left knee condition. On the other hand, Dr Cameron concluded categorically that the applicant could rise to a standing position without restrictions, could walk, could negotiate grades and steps and had undertaken a 15 kilometre walk two weeks previously. He stated that he was unaware that the applicant had taken some painkillers in completing that walk.
89. Dr Cameron agreed with Mr King-Scott that pain can be experienced differently by different people. However, Dr Cameron explained that the right sided sciatica would lead to discomfort. Walking with sciatica might cause minimal extra pain, but it would not preclude the applicant from doing the distance. However, Dr Cameron said he may have to do it more slowly. He explained that the only problem that could arise would be if the applicant had a lumbar spinal stenosis, a narrowing of the spinal canal. However, Dr Cameron stated there was no evidence of this.
90. Dr Cameron had also suggested that the applicant would have been a likely candidate for surgery in dealing with the nerve root problem. But it is now six years since the applicant had been experiencing this pain and therefore this would reduce the probability of effective surgical intervention. Dr Redmond has since ruled out surgery and stated that his present treatment is appropriate.
91. Dr Cameron and Dr Homolka both impressed the Tribunal with their knowledge of the requirements for assessment. In particular, they agreed that pain may be indicative of impairment or may help explain the impairment, but both doctors were clear that it was not just how an applicant subjectively reported pain. Both doctors said there must be an objective assessment of the ability to climb stairs. That is, they emphasised that the ability must be actually observed and not just a report that pain exists. In addition, Dr Cameron gave a most comprehensive report and explanation relating the sciatica to the lower back condition and his experience and perspicacity in the witness box was apparent. Also, his was the most recent report. Therefore, based on his qualifications and evidence, I accept Dr Cameron’s assessment of that aspect as being preferable. Therefore, the Tribunal concludes that the applicant’s sciatica is attributable to nerve root pain associated with but secondary to his back problem, and is not related to any restriction of the lower limb joints for any other reason. This has already been acknowledged and compensated under Table 9.6.
92. Therefore, the claim under Table 9.5 cannot be satisfied at 10% or the 20% levels.
93. The Tribunal affirms the decision under review.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 1, 4 and 29 November 2005
Date of Decision 1 February 2006
Counsel for the Applicant Mr RF King-Scott
Solicitor for the Applicant Mr P Granger, D'Arcys
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Ms S Railton, Australian Government Solicitor
10
0