Stuart Griffin and Military Rehabilitation and Compensation Commission
[2015] AATA 121
•4 March 2015
[2015] AATA 121
Division Veterans' Appeals Division File Number(s)
2013/1245
Re
Stuart Griffin
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 4 March 2015 Place Sydney In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 (Cth):
1.the reviewable decision made 13 March 2013, which denied liability to pay Mr Griffin further compensation for permanent impairment resulting from the compensable injury to his back, is set aside; and
2.the matter is remitted to the Respondent for reconsideration in accordance with the direction that Mr Griffin has suffered a 21% increase in the degree of permanent impairment suffered by him as a result of the compensable injury to his back with a deemed date of injury of 19 February 1989.
...........................[sgd].............................................
Deputy President J W Constance
Catchwords
COMPENSATION – permanent impairment – whether degree of whole person impairment has increased by 10% or more – decision set aside and remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 25(4)
Cases
Canute v Comcare (2006) 226 CLR 535
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
Deputy President J W Constance
Mr Griffin suffers from an injury to his back. Liability to compensate him in respect of this injury has been accepted by the Department of Defence.
Having been paid compensation for permanent impairment as a result of his back condition in 1997, Mr Griffin lodged a further claim for compensation for permanent impairment in May 2012.
This claim was refused by a delegate of the Military Rehabilitation and compensation Commission on the ground that Mr Griffin’s level of permanent impairment had not increased by 10% or more, the increase required to be compensable.
Mr Griffin has applied to the Tribunal for a review of the Respondent’s decision.
For the reasons which follow, the decision under review will be set aside and the matter will be remitted for further consideration.
BACKGROUND
The following findings of fact are based on the evidence of Mr Griffin unless stated otherwise.
Mr Griffin is 45 years old. He served in the Australian Army from 1987 until he was discharged on medical grounds in 2005.[1]
[1] Exhibit R1 p.85.
He first suffered back pain in February 1989 whilst he was serving in the Signals Corps. This pain recurred from time to time over the ensuing years. The extent of the pain, both in terms of duration and severity, worsened over time.
The Department of Defence accepted liability to compensate Mr Griffin for an injury being “internal derangement of L4/5 and L5/S1 discs” in April 1995.[2] On 27 May 1997, the Department accepted liability to pay Mr Griffin compensation for permanent impairment. This was on the basis that his accepted back condition caused a whole person impairment of 15%.[3]
[2] Exhibit R1 p.99.
[3] Exhibit R1 p.123.
By mid-2004, Mr Griffin was suffering constant pain in his back and numbness in his left leg and foot. He used a stick when walking to retain his balance.
In June 2004, Dr Guazzo performed lumbar surgery “to remove a large extruded disc protrusion … with substantial resolution of his sciatic symptoms and minimal lower back pain.” [4]
[4] Report of Dr Guazzo 28/06/2004, exhibit R1 p.225.
In early July 2004, Mr Griffin suffered recurrent sciatica which became severe. He underwent surgery in August 2004 to address a large L4/5 disc prolapse. On 6 September 2004, Dr Guazzo reported that Mr Griffin “had made good post-operative recovery and was discharged on 4 September 2004 with substantial improvement in his sciatic symptoms.” [5]
[5] Exhibit R1 p.228.
Mr Griffin worked in the Information Technology industry after his discharge from the Army in 2005. The pain in his left leg eased after surgery but the pain in his back continued. He was always aware of the back pain, although its intensity varied depending on his activities. Lifting or prolonged walking caused the pain to increase.
In 2005, Mr Griffin lodged a claim for patella-femoral joint degeneration in his left knee. He stated in the claim that he:
… can only walk 200-300m before getting pain in my knee. Slopes and stairs cause severe pain. Treatment does not help. [6]
[6] Exhibit R1 p.246.
By 2011, Mr Griffin was suffering constant back pain and numbness in his left leg. At the same time he suffered pain from the top of his left leg to his foot after walking more than about 100 meters. He had difficulty in negotiating stairs and in walking up slopes. He would use the handrail on stairs to relieve the pain in his leg and would rest as he walked up a slope. The pain in his back increased as he walked up a slope.
Mr Griffin underwent further surgery on 29 July 2011 in the form of decompression and spinal fusion from L4 to S1.
MR GRIFFIN'S CLAIM FOR COMPENSATION FOR PERMANENT IMPAIRMENT
On 9 May 2012, Mr Griffin lodged a further claim for compensation for permanent impairment with respect to his back condition. The claim was made in accordance with section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
In a certificate which formed part of the application, Dr Forceville, Mr Griffin's General Practitioner, reported that the claim was made in respect of the condition of L4/S1 laminectomy and fusion which was related to the previously accepted condition.
The impairments listed were:
stiffness – numbness left foot – walking perimeter 100m – sit limited 30 min – standing limited 10 min.[7]
[7] Exhibit R1 p.134.
The extent of the impairments was listed as:
bending lumbar spine 30 [degrees] frontal 0 [degrees] dorsal
lateral 20 [degrees] left and right
Dr Forceville considered that the impairments probably became permanent on 1 September 2011.
The claim was refused by the Respondent on the ground that Mr Griffin’s degree of permanent impairment had not increased by 10% or more. In that event the Act provides that no further amount of compensation is payable.
LEGISLATION
Section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides, in part:
(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.
...
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(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.
The Guide referred to in subsection (5) is the Guide to the Assessment of the Degree of Permanent Impairment.
Subsection 25(4) provides that:
(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.
ISSUES FOR DETERMINATIONS
The issues for determination are as follows.
a)What are the impairments from which Mr Griffin presently suffers?
b)Are the impairments permanent?
c)Did the impairments result from the compensable injury to Mr Griffin’s back?
d)What is the degree of impairment resulting from the compensable injury?
e)Has there been an increase in Mr Griffin’s degree of whole person impairment of 10% or more?
EVIDENCE
Evidence of Mr Griffin
Immediately following the surgery in July 2011 the pain in Mr Griffin's back was slightly reduced and he did not suffer sciatic pain. He continued to experience numbness in his left great toe. The sciatic pain, however, increased substantially in the year after the surgery.
He presently suffers the following:
·a restriction in the range of movement in his back –
ohe has difficulty leaning forward such that he has to kneel to pick up objects at floor level;
ohe cannot lean back;
osideways movements are restricted;
osudden back movements cause instant pain;
·he suffers constant soreness in his back;
·he suffers sciatic pain in his left leg and numbness in his left great toe; the sciatic pain was reduced after surgery but then increased; since late 2011 he has suffered episodes of severe pain radiating down his left leg;
·he has difficulty walking for distances greater than 100 meters without resting;
·walking up slopes causes pain in his back and left leg;
·difficulty in weight-bearing on his left leg when negotiating stairs;
·he cannot lift heavy objects;
·he has to frequently stand up at his workstation to relieve the pain in his back.
Reports of Dr Darwish, Neurosurgeon and Spinal Surgeon
Dr Darwish performed the surgery on Mr Griffin's back in July 2011.
Dr Darwish reviewed Mr Griffin in August 2011. On 25 August 2011 he reported that there had been:
…significant improvement in his left leg pain and resolution of weakness in the left ankle. He continues to complain of numbness in the left big toe. He also complained of paresthesia over the lateral aspect of both thighs in the distribution of the lateral femoral cutaneous nerves.[8]
[8] Exhibit R2.
Following a further review in October 2011, Dr Darwish reported:
His lower back pain has completely resolved as well as the sensory symptoms of the lateral aspect of both thighs. The power of his left ankle has recovered to normal. He continues to complain of numbness in the left big toe.[9]
[9] Exhibit R3.
In March 2012, Dr Darwish reviewed Mr Griffin and reported:
He continues to complain of lower back pain and stiffness and numbness in the left big toe. He has no radicular leg symptoms. The power in his left ankle had recovered to normal.[10]
[10] Exhibit R4. The
Clinical notes from General Practice attended by Mr Griffin
On 14 September 2012 Dr Makarious recorded:
Tender spasm lower back muscles
Nil radiation to legs
Full ROM of upper back.[11]
[11] Exhibit R1 p.162.
Report of Dr O’Carrigan, Orthopaedic Surgeon
In February 2012, Mr Griffin consulted Dr O’Carrigan in relation to his left knee. This consultation was on referral from his General Practitioner.
On 29 February 2012, Dr O’Carrigan reported:
[Mr Griffin] …… had his left knee hit by a cricket ball at the age of 15 and he had an arthroscopy and removal of the loose body and subsequently joined the army, he was in infantry from a number of years. He had an arthroscopy in 2001. He had spinal surgery last year and he has been doing some more walking and trying to improve his fitness. He has had some locking and giving way episodes, anterior knee pain, it is intermittent and worse with start-up from the seated position, stairs and hills.
On examination he had a full range of motion. His left knee alignment is satisfactory. Tracking is satisfactory. There is crepitus, there is no joint line tenderness but he does have a small effusion. The knee is stable.[12]
[12] Exhibit R6.
Evidence of Dr Guirgis, Consultant Orthopaedic Surgeon
Dr Guirgis assessed Mr Griffin in September 2013 at the request of his Solicitors. He provided reports dated 4 September 2013[13] and 19 May 2014[14] and gave evidence.
[13] Exhibit A1.
[14] Exhibit A2.
On 4 September 2013 Dr Guirgis reported, in part:
The normal lumbar lordosis was lost. Tenderness was elicited over the left sacroiliac joint, and over the L4 and L5 spines and spaces. Movements of the lumbar spine were as follows:
• Flexion 40 [N 90];
• Extension 0 [N 30];
• Right lateral flexion 10 [N 30];
• Left lateral flexion 0 [N 30];
• Right rotation 10 [N 30];
• Left rotation 0 [N 30].
There was guarding of the paraspinal lumbar muscles on exceeding that range. Straight leg raining was positive on the right side at 70 and on the left side at 40. Tension signs were positive on the left side. On the left side there was Grade IV weakness of the muscles within the L5 myotome including the extensor hallucis longus (big toe extensor) and the extensor digitorum (heel walk). On the left side there was Grade IV weakness in the muscles predominately innervated by the L4 nerve root namely the tibialis anterior, (ankle dorsiflexion with inversion). There was blunting of sensation in the L5 nerve root territory. The reflexes were normal.
“N” refers to normal range for a person of Mr Griffin's age.
In the opinion of Dr Guirgis the accepted back condition from which Mr Griffin suffers would presently attract a rating of 20% Whole Person Impairment in accordance with Table 9.6 of the Guide relating to the thoraco-lumbar spine. That Table provides for 20% rating for “loss of half normal range of movement.” Each of the measurements recorded by Dr Guirgis represented a loss of more than half the normal range of movement.
Dr Guirgis also assessed Mr Griffin as suffering a 20% Whole Person Impairment in respect of his lower limb function under Table 9.5. This Table provides for a 20% rating when a person “can rise to a standing position and walk but has difficulty with grades, steps and distances.”
Further, in the opinion of Dr Guirgis, the conditions suffered by Mr Griffin, and on which he based his assessments, are unlikely to improve.
Evidence of Dr Walsh, Consultant Orthopaedic Surgeon
Dr Walsh provided reports dated 13 March 2013[15] and 4 November 2013,[16] and gave evidence.
[15] Exhibit R1 p.193.
[16] Exhibit R7.
In February 2013, Dr Walsh reported that there was restricted flexion in Mr Griffin's spine as he could only bring the spine forward by about 30 degrees with lateral flexion and rotation of 20 degrees. He assessed Mr Griffin as suffering a whole person impairment of 15% under Table 9.6 as he has lost almost half the range of movement. His assessment under Table 9.5 was zero as Mr Griffin was able to walk for exercise.
In contrast to Dr Guirgis’ findings, Dr Walsh:
·was not given a history of ongoing sciatic pain;
·did not make findings of muscle weakness in the left leg;
·observed Mr Griffin negotiating stairs; and
·formed the view that any difficulty Mr Griffin experienced with walking (including slopes and stairs) was a result of the condition of his knees.
CONSIDERATION
In Canute v Comcare[17] the High Court said:
The Act only adopts the "whole person impairment" approach with respect to permanent impairments resulting from each "injury". That "whole person" approach cannot properly be used to deny the applicability of s 24 to something which corresponds to the legislative definition of an "injury". The statutory criterion of an "injury" is antecedent to the concept of "whole person" impairment, not the other way around.
[17] (2006) 226 CLR 535 at [37]
The reviewable decision in this matter relates only to Mr Griffin's back injury and it is only this injury which may be considered in deciding whether there has been a compensable increase in the whole person impairment suffered by him as a result of that injury. However, if the one injury affects the function of more than one part of Mr Griffin's body, the impairment to each part is to be separately assessed.[18]
[18] This is consistent with the approach taken by the Tribunal in Quirk and Military Rehabilitation and Compensation Commission [2009] AATA 899 and in Lyons and Military Rehabilitation and compensation Commission [2006] AATA 157.
What are the impairments from which Mr Griffin presently suffers?
Impairment is defined in section 4 of the Act to mean:
... 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.
Counsel for the Commission argued that Mr Griffin was not a reliable witness and I should not accept his evidence that he suffered radiating pain in his left leg after the operation performed in July 2011. It was put that any difficulties experienced by Mr Griffin in using his left leg arise from his knee and not from his back injury
Dr Darwish’s reports indicate that whilst Mr Griffin complained of numbness in the lateral aspects of both thighs shortly after the operation,[19] these sensory symptoms had completely resolved by October 2011.[20] He reported that Mr Griffin had no radicular leg symptoms in March 2012.[21]
[19] Exhibit R2.
[20] Exhibit R3.
[21] Exhibit R4.
The clinical notes of Mr Griffin's general practitioner record that on 14 September 2012 Mr Griffin complained of spasm of the lower back muscles with “nil radiation to legs”.[22] The notes, which relate to the period from the surgery in July 2011 until 29 December 2012, contain no reference to Mr Griffin suffering pain in his left leg. There is reference to his experiencing pain in his left knee.
[22] Exhibit R5.
When he assessed Mr Griffin in February 2013, Dr Walsh did not obtain a history from him which indicated that he had suffered left leg pain since the 2011 operation, other than numbness in the great toe. Mr Griffin was unable to give a reason why he did not tell Dr Walsh that he suffered severe episodes of pain radiating down his left leg.
It is surprising that Mr Griffin did not tell Dr Walsh of the episodes of severe pain he experienced after the operation in July 2011. However, it is not surprising that Dr Forceville, Mr Griffin’s General Practitioner, and other General Practitioners in the practice, did not record complaints of pain in the left leg. The clinical notes[23] relate to the period of approximately 18 months after the operation, a period in which it appears no further treatment of his back/left leg condition could be offered to Mr Griffin. As is the usual practice, the General Practitioners’ notes are extremely brief and I am not prepared to conclude that Mr Griffin did not suffer the pain he alleges based simply on the lack of history given to Dr Walsh and the lack of reference in the clinical notes.
[23] Exhibit R5.
Notwithstanding this evidence I am satisfied that when he gave evidence before me, Mr Griffin did so honestly and to the best of his recollection. In view of Dr Darwish’s report of March 2012, Mr Griffin may have been mistaken as to the onset of his left leg pain after the 2011 operation. It probably recurred some months later than he recollects. Otherwise, I accept his evidence as to his symptoms and the effect those symptoms have upon him. I find accordingly.
Are the impairments, or any of them, permanent?
The Commission did not dispute that the impairments described by Mr Griffin were permanent, within the meaning of the Act.
I am satisfied that the pain Mr Griffin suffers in his back, the radiating pain in his left leg and difficulties which they cause him, have continued since a time within 12 months of the operation in July 2011. I accept Dr Guirgis’ evidence that there is little likelihood of his condition improving and that he has undertaken all reasonable rehabilitative treatment. I note that Dr Walsh agreed that Mr Griffin's symptoms may not improve.
Did the impairments result from the compensable injury to Mr Griffin's back?
Based on the evidence of Mr Griffin and Dr Guirgis, I am satisfied that Mr Griffin has suffered a restriction in the movement of his back and continues to suffer pain in his back. I am satisfied also that these conditions are a result of the compensable back injury he sustained in 1995 and the subsequent surgery he underwent in an attempt to relieve the symptoms.
Based on the same evidence I am satisfied that the pain described by Mr Griffin as radiating down his left leg and its effects on his activities, is a result of the injury to his back and not the result of the injury to his left knee.
In reaching this conclusion, I prefer the evidence of Dr Guirgis to that of Dr Walsh.
Dr Guirgis is a Consultant Orthopaedic Surgeon with specific training in assessing permanent impairment. He explained the mechanical processes involved as follows:
The injured area of the spine is more prone to develop discopathic and spondylotic changes in the spine at an earlier age and such changes are expected to progress at a faster pace than comparable un-injured areas. In addition fusion of one or more levels will cause an associated transference of load to its adjacent level. This alteration of kinematics in the adjacent segments would include redistribution of load which would also accelerate the degenerative changes in the juxta L3-5 level.[24]
[24] Exhibit A1 p.6.
Mr Griffin gave evidence that the pain in his knee was different to the pain in his leg and that it was the latter which affected his ability to walk and to negotiate stairs and slopes. Dr Guirgis was aware of the problem present in Mr Griffin’s left knee.[25]
[25] Exhibit A2 p.1.
Dr Walsh also is an experienced Consultant Orthopaedic Surgeon. In his report dated 4 November 2013[26] Dr Walsh very clearly stated his opinion that Mr Griffin did not suffer any impairment of his lower limbs as result of his back condition. He said, in part:
Because the vertebral column encloses the spinal cord from which emerge the nerve roots which are collected and distributed to the body, impaction of a prolapsed disc on a nerve root can cause referred pain down the arm or leg known as brachialgia or sciatica.
I note that he has had surgery to correct such impingement of the nerve roots and therefore he is now free of sciatic pain. This sometimes does affect the function in the lower limbs but not in his case. He does have some knee pathology particularly in the patellofemoral joint which could contribute towards lower limb symptoms. However, I do not consider he has any impairment in his lower limbs due to his spinal condition.[27]
[26] Exhibit R3.
[27] Exhibit R3 pp.4-5.
Dr Walsh does not explain the resumption of the sciatic pain experienced by Mr Griffin after the 2011 operation. Further, he does not appear to have taken into account the evidence of Mr Griffin that the pain he experiences in his left knee is of a different nature to that which restricted his walking and negotiating stairs and slopes. Dr Walsh agreed that surgical intervention in the spine is intended to relieve sciatic pain, but that this may not always be achieved.
What is the degree of impairment of Mr Griffin resulting from the compensable injury?
Thoraco-lumbar spine
I am satisfied that Mr Griffin has lost more than half the normal range of movement in his thoraco-lumbar spine. Dr Guirgis made a number of detailed findings on examination that this was the case. I prefer his evidence to that of Dr Walsh. Dr Guirgis took more detailed measurements than did Dr Walsh. I also take into account that Dr Guirgis has had particular training in assessing permanent impairment. On the basis of the evidence of Dr Guirgis and Mr Griffin, I am satisfied that under Table 9.6 of the Guide, Mr Griffin has suffered a 20% whole person impairment.
Left leg
Further, again on the basis of the evidence of Mr Griffin and Dr Guirgis, I am satisfied that Mr Griffin can rise to a standing position and walk but has difficulty with grades, steps and distances. In addition to the reasons given above, I prefer the evidence of Dr Guirgis to that of Dr Walsh with respect to the left leg as Dr Walsh’s finding that Mr Griffin had no difficulty with grades and steps is inconsistent with the evidence of Mr Griffin. Mr Griffin has difficulty walking distances over 100 metres, and struggles walking up inclines and stairs as a result of the sciatic pain in his leg.I am satisfied that he has suffered a 20% whole person impairment in respect of his left lower limb function under Table 9.5 of the Guide.
The Combined Values Chart
This Chart, which forms part of the Guide,[28] applies when a single injury gives rise to multiple losses of function, as in Mr Griffin's situation. In accordance with the Chart, the combination of the two assessments of 20% gives a combined assessment of 36%.
Has there been an increase in the degree of impairment of 10% or more since Mr Griffin's degree of impairment was determined on 27 May 1997?
[28] See Guide to the Assessment of the Degree of Permanent Impairment (Ed 2.1), Part 2 - Appendix 1.
It was accepted in 1997 that Mr Griffin suffered a whole person impairment of 15% as a result of his back condition. For the reasons set out above, I find that Mr Griffin has suffered an increase of 21% in his whole person impairment resulting from the compensable injury to his back with a deemed date of injury of 19 February 1989.
CONCLUSION
The reviewable decision made 13 March 2013, which denied liability to pay Mr Griffin further compensation for permanent impairment resulting from the compensable injury to his back, will be set aside.
The matter will be remitted for reconsideration in accordance with the direction that Mr Griffin has suffered a 21% increase in the degree of permanent impairment suffered by him as a result of the compensable injury to his back with a deemed date of injury of 19 February 1989.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. .............................[sgd]...........................................
Associate
Dated 4 March 2015
Date(s) of hearing 20-21 November 2014 Date final submissions received 21 November 2014 Counsel for the Applicant E Wood Solicitors for the Applicant KCI Lawyers Counsel for the Respondent B Kelly Solicitors for the Respondent Moray & Agnew
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