Stephen Boyd-Squires v Comcare

[2004] AATA 449

Administrative

Appeals

Tribunal

 

ORAL DECISION 2004 [AATA] 449

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/767

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Stephen Boyd-Squires

Applicant

And Comcare

Respondent

DECISION

Tribunal Senior Member Dwyer

Date              6 May 2004

Place            Melbourne

Decision The Tribunal affirms the decision under review.

[sgd] Mrs Joan Dwyer

Senior Member

WORKERS’ COMPENSATION – claim for low back injury – evidence of age-related lumbar disc degeneration – insufficient medical evidence to link back condition with service – decision under review affirmed.

Safety Rehabilitation and Compensation Act 1988.

REASONS FOR DECISION

6 May 2004 Senior Member Dwyer       

1.      This is an application for review of a reviewable decision under the Safety Rehabilitation and Compensation Act 1988 (“the Act”).  The reviewable decision, which was made on 26 May 2003, affirmed a decision made on 1 November 2002, which rejected Mr Boyd-Squires’ claim for compensation for a low back injury. 

2. Mr Boyd-Squires appeared and gave evidence, as did his wife. His general practitioner, Dr White, gave telephone evidence. Mr Gourlay of Counsel appeared for Comcare. Mr Shannon, an orthopaedic surgeon, gave telephone evidence for the respondent. I had before me the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) and the exhibits taken into evidence during the hearing.

3.      Mr Boyd-Squires’ claim was lodged on 1 May 2002.  He sought compensation for “injury to lower back” and claimed that both Army and Navy service had contributed to the condition.  Mr Boyd-Squires lodged a statement with his claim (T5, p40), in which he set out seven matters which he said had contributed to his back pain.  They were as follows:

(1) Lifting bridge panels in 6 man teams in the Engineer Corps. Under Instruction by N.C.O and commissioned Officers.

(2) Heavy bridge building in the Engineer Corps, using timber logs etc.

(3) Changing truck tyres in the transport section of the Engineer Corps. Loading and unloading of trucks.

(4) Doing freefall absail [sic] jumping face down 100 metres, under instruction, then having your body jerked to a stop by a comando sergent [sic].

(5) Carrying excessive weights in packs over and above my body weight.(70kg).

(6) Being ordered to carry personell [sic] on my back that are twice my size and weight for 50 metres.

(7) Wearing OCCABA and climbing through machinery spaces on R.A.N. ships.

4.      Mr Boyd-Squires served in the Defence Reserve Force from 1984 to 1997.  I find on the basis of the statements of service in A2 that he spent between approximately three and nine weeks a year on his military duties in that period.  In 1997 Mr Boyd-Squires joined the Navy.  He said that he chose to undertake the full recruit training course, even though he could have claimed partial exemption because of his prior Army service.  He completed the course very successfully and won some medals.

5.      On the evidence before me the earliest record of back complaints made by Mr Boyd-Squires to any Naval doctor is the record of 21 September 2000 (R2 pp50&49). On that day he reported to the medical officer on HMAS Success in which he was serving at the time.  The record reads as follows:

Presents requesting pain relief.  States he has lower back pain.  Long history.  Won't state when it first started.  States he has disc prolapse and has had CT.  No reference in notes.  States he had it done himself.  This is the first time he has told service medical officer about it.  Won't state how initial injury occurred.  Has pain on right side lumbar region.  No radiation.  Denies peripheral sensory pain disturbance -

On examination, full range of movement.  States some pain on extreme side flexion to left.  No tenderness over spine.  Straight leg raising to 85 degrees bilaterally.  Limited by [illegible]

Slump test negative.  Low back pain.  No sciatic symptoms or signs.

6.      The doctor noted that she had prescribed an anti-inflammatory, Ibrufen, and paracetamol.  She added:

Counselled regarding need to inform service medical officers if they have had treatment by civilian medical officers and have pathology found.  Member has asked wife to send CT report. [abbreviations expanded]

7.      Mr Boyd-Squires said that from then on, that doctor was unsympathetic to him.  He said that she avoided him.  He also disputed the accuracy of her note.  He denied that he refused to state the cause of the initial injury, although he did say that he did not give her the cause because he did not know what it was.  He also said that he had already lodged the CT report with a Naval medical officer.  I do not accept that evidence.  He may well have said that he did not know how he initially injured his back, but I do not consider that the note reads consistently with Mr Boyd-Squires having told the medical officer that he had previously given the CT scan to somebody in the Navy.  Nor do I accept that there would have been any reason for the medical officer to fail to accurately record her discussion with Mr Boyd-Squires.

8.      The note of 21 September 2000 does not indicate that Mr Boyd-Squires made any suggestion to the medical officer that his low back pain was due to carrying OCCABA equipment when climbing through hatches in the ship, as he claimed in his evidence at the hearing, or that he told the doctor that any other incident during his service life had caused or contributed to the pain. 

9.      There is no further record of any complaint of back pain in the medical records until May 2001 (T3 p12), when Mr Boyd-Squires had two attendances for physiotherapy treatment.  The note states that he said that he believed his exacerbation of back pain was related to a dose of flu.  After two treatments, he seems to have improved, although the physiotherapist has noted that the treatment included range of movement exercises long term.  The outcome is noted as: “good relief of pain with physio symptoms largely settled”. 

10.     The next recorded incident was on 18 June 2001.  There are two entries at R2 pp47 and 48, and a typewritten version at T9, page 52.   On 18 June Mr Boyd-Squires saw a Navy “medic” who recorded that he had suffered a sudden onset of low back pain whilst lifting furniture.  He was examined and then referred to a medical officer on 18 June 2001, who noted:

Recurrence of low back pain.  Lifting furniture yesterday.  Left sided low back pain.  No radiation.  Severe / seconds, then settled.  Now a dull left sided low back pain with movement.  Past history, chronic intermittent left low back pain similar to this but never has had pain like yesterday.  No bowel or urinary disturbances.

11.     Mr Boyd-Squires was also referred to a physiotherapist on 18 June 2001.  There is a physiotherapy report as a result of that referral (R2, p18).  The physiotherapist wrote that the problem commenced as a result of, “lifting/ moving house, poor seat in car”.  That is more information than the medic or doctor had recorded about the cause of the pain.  Thus I find that the physiotherapist was given that history by Mr Boyd-Squires.  It has not simply been copied from the notes of the medic or the medical officer.  I find that Mr Boyd-Squires told the physiotherapist what he wrote down.  The physiotherapist reported:

Current symptoms relieved, ++ [well relieved] with McKenzie assessment and treatment.  Will review for progression of treatment.

12.     Mr Boyd-Squires denied that he had felt pain as a result of lifting furniture, or that he had told any Navy medic or doctor or physiotherapist that his pain had commenced while he was lifting furniture.  As I said at the hearing, I do not accept that.  I find that the fact that there are three notes in three different handwritings which all indicate that Mr Boyd-Squires said that the onset of the pain was while "lifting furniture", makes it highly probable that Mr Boyd-Squires gave that history.

13.       It may have been of assistance to Mr Boyd-Squires case, if that episode of back pain had been due to lifting furniture at the time when he was posted from Sydney to Victoria.  However, he insisted that he did not lift any furniture at the time of the move.  He called his wife to support his evidence on that issue.

14.     Another difficulty with the evidence in the matter is that although Mr Boyd-Squires, in evidence, said that on looking back at his Army service he felt that his back had suffered injury in the first six activities set out in paragraph 3 above, he agreed that he had not told Mr Shannon so, when he saw him on 30 January 2004. Mr Boyd-Squires did mention the problem with the OCCABA equipment to Mr Shannon, but he acknowledged that he had not told Mr Shannon about having back pain while working on bridge building and also when doing a freefall abseil in Victoria.  He did not tell Mr Shannon about the problems which he described to the Tribunal.

15.     Mr Boyd-Squires said that because Mr Shannon has a Naval background himself, he felt he would not give an impartial opinion.  He also said that he considered that it was sufficient that he had referred to those details in his statement (T5).  As I pointed out at the hearing, Mr Boyd-Squires did not help himself by his attitude when he saw Mr Shannon.  He did not give him the opportunity to give a well-informed impartial opinion on the matter.  He did not help his own case by not disclosing, to the only orthopaedic specialist he saw, the matters which he believed may have contributed to his back condition.

16.     Mr Boyd-Squires gave evidence that he suffered pain during his Army service as a result of lifting of the bridge panels and the free-fall abseil incident, but he also said that he recovered quickly from those incidents.  He said he did report the pain while bridge building in 1998, and was given light duties for three days but then had no more trouble.  He said he did not report the incident when abseiling, but once again he got better after a few days.   Mr Gourlay told Mr Shannon about those incidents and asked him whether the fact that Mr Boyd-Squires had recovered quickly was relevant to deciding whether or not those incidents had any long term effect.  Mr Shannon said that was relevant, and it indicated that they did not cause any long term injury or damage.

17.     Mr Boyd-Squires relied on a short report from his treating general practitioner, Dr White, dated 17 September 2003 (A1).  Dr White wrote:

This man is a patient of the clinic.  He presents with chronic low back since 2000.  At this time he was in the Navy.  The injury reoccurred whilst wearing a breathing apparatus and climbing through hatches.  This happened in September 200 [sic].  The injury was reported to the ship’s medical officer.  No treatment was offered at the time.

The back pain has presented since then

The pain is:-

-   constant, may radiate to his feet

-   he has not worked since then

-   he can only do light work around his home

A recent CT scan shows disc injuries at two levels.

In my opinion this mans back injury was directly related to his service in the Navy.

18.     Mr Boyd-Squires said that he understood that it was Dr White’s opinion that the fact that there was now damage at a second level was significant, and showed that that damage was due to Naval service.  When Dr White gave evidence he said that he had seen Mr Boyd-Squires four times, and that his report (A1) was written after the first two visits, on the basis of the history given to him by Mr Boyd-Squires.

19.     The Tribunal noted that the CT scan of 29 February 2000 had reported that at L4/5, there was a “small left postero lateral osteophyte … protruding into the exit of the left intervetebral foramen” which could cause some impingement on the left L4 nerve root.  The changes were described as “fairly longstanding”.  The more recent CT scan of 11 September 2003 (R5) showed a “left posterior disc protrusion at L1/2” which “indents the left anterolateral aspect of the spinal theca”.  It reported “the central canal is of satisfactory calibre”.  That CT also reported “a symmetrical bulging of the left posterolateral aspect of the [L4/5] disc” which was reported as suggesting the site of an old small disc protrusion. 

20.     When Mr Shannon was asked to comment on the new CT findings, he said that the pain Mr Boyd-Squires was reporting was coming from the L4/5 disc and was quite different to the pain he would be having if it was a result of damage to the L1/2 disc.

21.     When Dr White was told that Mr Shannon had given that opinion and asked if he would like to comment on it, he said he had nothing to add.

22.     The Tribunal had medical evidence from Mr Shannon who said that Mr Boyd-Squires was suffering from mechanical back pain associated with lumbar disc degeneration and that there was no ongoing work related component to the condition.  Although Dr White had written in his report (A1) that in his opinion the injury was directly related to service in the Navy, it was apparent from his evidence that he had a very brief and inadequate history.  He had simply accepted what Mr Boyd-Squires had told him, without exploring the history with Mr Boyd-Squires, or looking at the Naval medical records. 

23.     There is no dispute about the fact that Mr Boyd-Squires does have damage to his lower back.  The considered opinion of Mr Shannon, the orthopaedic specialist, is that Mr Boyd-Squires problems are due to degenerative disc disease and that, while the Army and Navy service might have caused him to suffer some pain on some occasions, it was not lasting and it has not made any difference to his current condition.  There is no persuasive medical evidence which says that the incidents during service made any lasting difference to Mr Boyd-Squires’ condition. 

24.     The decision under review will be affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer

Signed: Josephine McKay
  Associate

Date/s of Hearing  6 May 2004
Date of Decision  6 May 2004
Applicant’s Representative      Self
Counsel for the Respondent     Mr Gourlay
Solicitor for the Respondent     Australian Government Solicitor