Tyrrell and Comcare

[2006] AATA 958

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 958

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2004/618

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KEVIN TYRRELL

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date10 November 2006

PlaceMelbourne

Decision The decision under review is affirmed.

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

Senior Member

COMPENSATION ‑  claim for permanent impairment compensation – low back injury in 1991 – claim made in 2004 – impairment now by reason of age related degeneration – not an impairment by “injury” which “resulted” in impairment – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) s4, s14 and s24

REASONS FOR DECISION

10 November 2006   Mr John Handley, Senior Member

1. Mr Tyrrell has applied to review a decision made by the Respondent to deny him compensation for an impairment lump sum pursuant to s24 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).  The application arises out of a low back injury he suffered in the course of his employment with Australian Airlines on 20 April 1991.

2.      Mr Tyrrell was paid weekly compensation following the initial injury until 20 March 1992 when an officer of the Respondent decided that there was no liability to pay compensation beyond that date.  He did not challenge that decision.

3. A claim for an impairment lump sum was made in January 2004. The Respondent then decided that there was no liability to pay compensation beyond 20 March 1992, having regard to the previous decision, and liability for an impairment lump sum was accordingly denied. When Mr Tyrrell sought reconsideration of that decision, another officer of the Respondent decided, correctly, that the primary decision contravened the Act but otherwise affirmed that part which concerned the denial of liability to pay compensation as claimed.

4.      This application was heard in Shepparton on 25 October 2006.  Mr Tyrrell appeared without representation.  He had previously been represented by solicitors but they had ceased to act.  Mr Ferwerda of Counsel appeared on behalf of the Respondent.  A number of documents were received into evidence and will be referred to in this decision.  Neither party called any witnesses.

the legislation

5. In general terms, compensation is payable under s14 of the Act in respect of an injury. For the purposes of this decision “injury” is defined at s4 as a disease or an injury suffered by an employee being a physical injury arising out of or in the course of the employment.  “Disease” is defined as being an ailment or an aggravation of an ailment that was contributed to in a material degree by the employment.

6. Section 24 of the Act provides that where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation with respect to that injury. The degree of permanent impairment is to be determined by reference to the “Guide to the Assessment of the Degree of Permanent Impairment” (“The Guide”).  Having regard to the injury which is the subject of these proceedings, an amount of compensation is not payable if the permanent impairment, if determined, is less than 10 per cent, of the “whole person”.

7.      Table 9.6 of “The Guide” relevantly applies because it is concerned with the thoraco‑lumbar spine.  The criteria against a 10 per cent impairment is “Loss of less than half normal range of movement”.

8.      The word “impairment” is defined in s4 of the Act as meaning “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.”  The word “permanent” is also defined at s4 as meaning “likely to continue indefinitely.”

the evidence

9.      Mr Tyrrell suffered low back injury when he was employed as a leading hand in the catering section of Australian Airlines.  He attempted to arrest the fall of a food cart which had over balanced.  In so doing, he experienced a pain in his lower back.  The incident was reported and he attended Dr Lajoie on the same day.  In a report of 12 September 1991, Dr Lajoie obtained a history of “a sharp pain at the level of L5” without sciatica.

10.     Mr Tyrrell did not return to work.  He was paid weekly compensation and medical like expenses for his treatment until 20 March 1992 when he accepted a voluntary redundancy.  Shortly thereafter, he and his family moved to Tocumwal in New South Wales.  Mr Tyrrell has been subsequently engaged in a number of different jobs and he is presently employed by Kraft Foods.

11.     Mr Tyrrell said that his back has become progressively worse since 1991.  He said that prior to the episode he did not suffer back pain.  He played golf until 2003 and, by all accounts, he was more than an average player.  He said that he was encouraged by his physiotherapist to play golf because it would maintain his mobility.  He was also instructed in appropriate methods of bending and rotating both when playing golf and in day-to-day activities.  He played golf at an average of once per month and has played in club championships.  He was alleged to be the subject of a surveillance report which was received into evidence.  A video film being the basis of the report could not be located.  Mr Tyrrell disputed some of the comments and observations made by the investigator as contained within the report, but there was no denial by him that he had played golf on a regular basis until 2003.  Mr Tyrrell also played squash in the early 1990’s.

12.     At the present time Mr Tyrrell says that he has “good and bad” days.  He is cautious in his movements and does not undertake activity which is likely to increase his level of pain.  He is able to dress and undress unaided.  His present employment is not exertive but does involve some minor lifting.  He agreed that he is able to bend but by undertaking a posture of spreading his legs or by holding on to an aid or an implement (for example, he agreed that he could bend to lift a golf ball and did so either by spreading his legs or by using a golf club).  In recent years he retrieved a golf ball by a squatting position.

13.     In recent years, Mr Tyrrell said that his low back pain has become considerably worse.  He said that he now has pain extending into his left leg and into his left foot and toes.  He is not able to drive except for short periods and after approximately 20 minutes he stops the car and undertakes stretching type exercises.

medical evidence

14.     In his report of 12 September 1991, Dr Lajoie recorded as follows (T8, p21):

Mr Tyrell (sic) suffers from Lumbar disc disease.  X-Rays have confirmed loss of height of L5 disc.  It is my belief that the incident on 20.04.91., is the cause of his back injury.  I am not aware of any pre-existing back disease.

Lumbar disc disease may result from trauma, but also from progression of degenerative disease of the spine.  In view of the abrupt history of Mr. Tyrrell’s  condition, it is more likely to be traumatic in origin.  Mr. Tyrrell’s back condition is permanent, but his disability may fluctuate.  He is currently totally incapacitated for work, as a result of his back condition.

15.     The “X-rays” referred to in the above report are not within the T‑documents although there was an MRI scan of Mr Tyrrell’s lumbar spine on 23 August 1991.  For the purposes of the following it is assumed that the contents of the MRI were the “X‑rays” referred to by Dr Lajoie.  A pathologist at the St Vincent’s Radiology Department reported on 23 August 1991 in the following terms (T14, p28):

MRI LUMBAR SPINE :  T1, T2 weighted sagittal scans were performed as well as T1 weighted axial scans through the L4/5 and L5/S1 disc spaces.  There is some loss of signal from the L4/5 and L5/S1 discs consistent with some degenerative change.  There is no significant disc protrusion seen.  The cauda aquina and conus regions appeared within normal limits.  There was no significant encroachment on the neural exit pathways.

CONCLUSION:  Appearances consistent with disc degeneration at L4/5 and L5/S1.

16.     Mr Neri who examined Mr Tyrrell at the request of the Respondent on 12 March 1992 interpreted the MRI report (above) as providing “a pathological basis for symptoms of low back pain”.

17.     Dr Phonesouk of the Lakeside Medical Centre in Finley reported on 24 June 2004 that Mr Tyrrell had been a patient of that practice for more than ten years.  He noted that Mr Tyrrell had reported low back pain on a daily basis, that on occasions pain had been severe and required the prescription of “strong analgesia” and “a recent scan of his back shows multilevel disc degeneration in his spine”.  (The ‘scan’ was not appended to the report and was not within the T‑documents).

18.     Mr Fogarty examined Mr Tyrrell at the request of the Respondent on 25 July 2005.  He measured forward flexion at 70 degrees, extension of 20 degrees, rotation to either side at 20 degrees and lateral flexion to either side at 20 degrees.  He did not locate any neurological deficit in either lower limb, reflexes were present and brisk and equal and flat leg raising caused no apparent pain.  Apparently he observed the CT scan referred to by Dr Phonesouk and interpreted it as showing “mild multilevel disc bulging and facet joint degeneration”.  Mr Fogarty concluded that Mr Tyrrell suffered from degenerative disc disease of the lumbo-sacral spine.  He thought that the incident in 1991 possibly aggravated pre-existing degenerative disc disease but the aggravation was not permanent.  He thought that any present impairment “is entirely attributable to the ongoing underlying condition of degenerative disc disease”.  In a further report of 9 November 2005, Mr Fogarty concluded that the symptoms described by Mr Tyrrell at consultation on 25 July 2005 were “entirely attributable to the natural progression of the degenerative disc disease which has overtaken and supplanted the effect of the April 1991 back injury”.

19.     Mr Tyrrell was examined by Mr Fahrer on 8 September 2004 at the request of his previous solicitors.  Dr Fahrer reported (Exhibit A, p3):

The thoraco lumbar spine presented a flattening of the lumbar lordosis, with tense paravertebral muscles.  Active, painless movements were limited: flexion to 40°,extension to 0°. lateral flexion right to 10°, left to 15°.  Rotation right and left 0.  There was tenderness on palpation on the spine of L5 and the Right Sacro-iliac joint.

The lower extremities  were of normal aspect.  Straight leg raise was of 30° right and 60° left.  Patellar and ankle reflexes were present and normal.

20.     Dr Fahrer did not observe X‑rays.  He concluded that Mr Tyrrell suffered from “chronic . . . low back pain syndrome aggravated by age and obesity”.  He assessed Mr Tyrrell as having an entitlement to an impairment lump sum of 20 per cent under Table 9.6 of “The Guide” “due to loss of more than half normal movement of the thoraco lumbar spine”. 

21.     On 17 October 2006, Mr Tyrrell completed an MRI examination of his lumbar spine which was reported in the following terms (Exhibit B):

Specific Disc Findings:

At the level of L1/2 there is no significant disc replacement, spinal canal stenosis or neuro compression.

At the level of L2/3 there is no disc displacement or neuro compression identified.

At the level of L3/4 there is mild broad based disc displacement without any evident radial tear, central spinal canal stenosis or neuro compression.

At the level of L4/5 there is a small radial tear in the posterior disc (axial FSE T2 image 11).  There is no completed spinal canal stenosis or neuro compression detected.

At the L5/S1 level there is broad base disc displacement posteriorly and on the left para centrally causing asymmetric spinal canal sentosis.  This may impinge upon the forming left S1 nerve root.  This appears to impinge on the proximal left S1 nerve root (axial T2 image 16).  Although the S1 nerve root does not appear to be particularly edematous.

Conclusion:

1.Disc degeneration L4/5 level with small radial tear.  No neuro compression identified here nor at the L3/4 level.

2.At the L5/S1 level the disc is degenerative and desiccated with broad base disc displacement with focal protrusion posteriorly and on the left para centrally.  The latter would compromise the exiting proximal left S1 nerve root.

3.Distal aorta and proximal left CIA ectasia as described.

conclusion and reasons for decision

22.     There was no dispute that Mr Tyrrell did suffer an episode of severe back pain following an incident at work in April 1991.  Equally it was not in dispute that he was totally incapacitated for approximately 12 months until he accepted a voluntary redundancy in March 1992.

23.     To his credit Mr Tyrrell has largely been engaged in employment since he moved from Melbourne to Tocumwal in 1992.  Despite the presence of a demonstrable back injury, he has also been, to his credit, engaged in sporting and leisure activities, mainly golf, by the encouragement of his physiotherapist.  That he has been able to play golf does not diminish or discount the presence of a back injury which is evident from the MRI reports.

24.     The episode at work in April 1991 occurred more than 15 years ago.  Mr Tyrrell was then 40 years of age.  An MRI of the lumbar spine in August of that year found that there was disc degeneration at L4/5 and L5/S1 without significant disc protrusion.

25.     In October 2006, the radiologist reported that there was “mild broad based disc displacement at L3/4, a radial tear in the posterior disc at L4/5 and broad based disc displacement posteriorly on the left side causing asymmetric spinal canal stenosis at L5/S1”.  It was thought that there was impingement on the S1 nerve root.  In conclusion the radiologist reported the presence of disc degeneration at L4/5 and L5/S1 with broad based disc displacement and focal protrusion at L5/S1.

26.     A comparison of the above MRI reports indicate a significant worsening in Mr Tyrrell’s lumbar spine between 1991 and 2006.  Mr Tyrrell’s complaints of increasing pain over the years are consistent with the radiological findings.

27.     I have no doubt that Mr Tyrrell does have an impairment in his lumbar spine which is permanent.

28.     However, any permanent impairment must be referrable to the employment.

29.     On the probabilities, I am not satisfied that the incident in 1991 caused an impairment, then, which could be found to be permanent.  That is, in 1991, the cause of the Applicant’s pain – however it is described – could not be found as “likely to continue indefinitely”.  At that time, it would have been impossible to make such a finding.

30.     I am satisfied on the balance of probabilities that there has been a deterioration in Mr Tyrrell’s spine since 1991 which is referrable to age related factors and the activities of day-to-day living.  Mr Tyrrell suffered a single episode only in the employment.  He did not return to that employment.  It is probable that he had a temporary aggravation of the lumbar disc disease then present but there is nothing which points to the episode of April 1991 causing a permanent effect or being responsible for the subsequent disc disease.  There is no evidence which points to any pre-existing disc disease being so aggravated as to be responsible for permanent impairment.  Equally there is no evidence that the rate of progression of the disease was accelerated by the episode at work to such an extent that the impairment, now existing, is referrable to the accelerated process.

31.     If this application is treated as compensation for “injury”, being the disc injuries at L4/5 and L5/S1, an entitlement to compensation will only exist if the “injury” “results” in impairment (refer s14(1)). If not apparent from the foregoing, I am not satisfied that the “injury” as presently exists is the same “injury” that occurred in 1991.

32.     In the alternative, if the claim is to be treated as a “disease”, being the degenerative disc disease, I can not be satisfied that the employment contributed “in a material degree” to the impairment.  As found earlier, there would have been a temporary aggravation of pre-existing disc disease.  But with the passage of time, the effects of the temporary aggravation would have settled – because they were temporary – and the natural consequences of progressive age related degeneration would have been the cause of increasing pain and discomfort.

33.     Mr Fahrer did not examine any X‑rays.  He assessed impairment under Table 9.6 and whilst acknowledging that there was an episode at work on 20 April 1991, it was his opinion that “low back pain syndrome” was aggravated by age and obesity.

34.     In the absence of evidence to the contrary and by regard to a comparison between the MRI reports, I am satisfied that the opinions expressed by Mr Fogarty are to be preferred namely, that the episode of April 1991 caused a temporary aggravation of pre-existing degenerative disc disease.  Any subsequent impairment is not related to employment but rather is attributable to the progression of degenerative disc disease.

35.     In the circumstances the decision under review will be affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         .....................................................................................
  Personal Assistant

Date of Hearing  25 October 2006
Date of Decision  10 November 2006
Solicitor for the Applicant          Self Represented
Counsel for the Respondent     Mr J Ferwerda
Solicitor for the Respondent     Sparke Helmore