Wendy Desmond-Ross and Military Rehabilitation and Compensation Commission
[2012] AATA 460
•20 July 2012
[2012] AATA 460
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0316
Re
Wendy Desmond-Ross
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 20 July 2012 Place Sydney The decision under review is affirmed.
....................[sgd]..........................
Ms N Isenberg, Senior Member
CATCHWORDS
Compensation - whether any impairment suffered by the Applicant as a result of accepted back injury became permanent prior to 1 December 1988 - any new impairment as a result of the accepted back injury since 1 December 1988 - gradual and continuing deterioration of back condition.
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971, Ss 27, 39, 45(2A), 46, 49
Safety, Rehabilitation and Compensation Act 1988, Ss 19(3)(a), 24, 25, 31,124
Workers Compensation Act 1926
CASES
Comcare v Maida (2002) 36 AAR 69
Comcare Australia v Mathieson (2004) 79 ALD 518
Comcare v Pantic [2012] FCA 388
Department of Defence v West (1998) 50 ALD 712
Hoyle v Telstra Corporation Ltd; Ramovski v Telstra Corporation Ltd (1997) 25 AAR 240
Johnson and Military Rehabilitation and Compensation Commission [2011] AATA 443
McDonald v Director-General of Social Security (1984) 6 ALD 6
Morris and Comcare (2007) 97 ALD 189
Razmovski v Telstra Corporation Ltd; Hoyle v Telstra Corporation Ltd (1997) 24 AAR 544REASONS FOR DECISION
Ms N Isenberg, Senior Member
Wendy Desmond-Ross, the Applicant, who is currently 65 years old, suffered injury to her back when she fell from the top of a human pyramid during training in the Army Reserve on 17 June 1978. She reported the injury on 5 August 1978 and completed a compensation claim on 9 August 1978 in respect of a 'pinched sciatic nerve'.
Liability was accepted for 'lumbar-sacral disc lesion' under the provisions of s 27 the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act), and the Applicant was paid weekly compensation for total incapacity pursuant to s 45(2A) of that Act.
The Applicant was subsequently paid compensation for partial incapacity for work and for medical treatment: s 46 and s 37 of the 1971 Act. On 27 May 1986 the Applicant requested that she be paid a lump sum for redemption under s 49 of the 1971 Act. The liability under s 46 of the 1971 Act was redeemed on 5 February 1986 by payment of a lump sum amount of $157,865 in accordance with the provisions of s 49(3)(b) of the 1971 Act.
The Applicant made a further claim for compensation for incapacity for a pinched sciatic nerve L/s disc lesion condition on 29 June 2001. On 4 July 2001, it was determined that the Applicant was entitled to payment of compensation for incapacity pursuant to s 19(3)(a) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Her entitlement to compensation for incapacity was later re-assessed to take into account the lump sum payment previously made pursuant to s 49 of the 1971 Act. On 3 December 2001, it was determined that the Applicant was entitled to compensation for incapacity pursuant to s 31 of the SRC Act, and she has continued to receive compensation for incapacity for work under the SRC Act.
On 20 September 2010, the Applicant made a claim for permanent impairment for her accepted back injury. It was determined that no payment could be made under the transitional provisions of s 124 of the SRC Act for the Applicant's accepted back injury. That determination was affirmed on review and it is that decision which the Tribunal is asked to review.
Section 124 SRC Act states inter alia:
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) ...
(ii) ...; or
(iii) in any other case--under the 1971 Act as in force when the impairment or death occurred.
The Applicant has subsequently made claims for compensation in respect of injuries to her legs and arms, a psychiatric injury, a urological condition and for injury to her neck. Those claims will be the subject of a determination by the Respondent, and are not the subject of the review by the Tribunal.
ISSUES
Did the impairment suffered by the Applicant as a result of the accepted back injury become permanent prior to 1 December 1988?
If so, has the Applicant suffered any new impairment as a result of the accepted back injury since 1 December 1988?
APPLICANT’S EVIDENCE
The Applicant said that after the accident she developed immediate pain in her back which intensified over several weeks, and she ultimately went to hospital a few weeks later. At that time, she was experiencing pain from low back down the outside of her left leg down as far as her ankle.
She came under the care of Dr Mahoney who initially treated her with traction and then undertook a discogram which revealed a disc prolapse at L4/L5. In February 1979, the first of three operations was undertaken - an excision of that disc.
She said she had a poor result from the surgery and her condition continued to deteriorate. Her left leg was weak. She would get periods of extreme pain and once collapsed and was taken to hospital. In late 1979 she came under the care of Dr Ryan, orthopaedic surgeon. Dr Ryan tried a number of options including putting the Applicant in a full body plaster jacket for 12 weeks to stabilise the spine.
Although the Applicant initially had good relief from the plaster jacket, she continued to be troubled by back pain and disabilities with her legs. Dr Ryan took the view that a spinal fusion operation would be beneficial and this took place on 19 March 1980, and she was hospitalised for two-three weeks. Prior to discharge, another plaster jacket was applied and was not removed until 10 June 1980. Initially she ‘came good’ for a while but she had left foot drop and then had to wear a special shoe for a year. She had to drag her left foot forward.
She continued to have pain in the lumbar spine and down the left leg. When her condition did not improve Dr Ryan was concerned that the fusion may not have taken. The fusion screws were removed in 1982 but, initially at least, she did not have a particularly good outcome from that surgery either. She said Dr Ryan told her that she had pinched nerves and nothing further could be done. In cross-examination she said that after the operation she was left with ongoing pain and stiffness affecting her lower back – there was ‘pain’ and ‘bad pain’. She agreed in cross-examination that her pain had gradually worsened over time. While the pain had fluctuated from time to time she has had pain, weakness and numbness in the left leg from as far back as 1982, and that since that time her ability to walk and her gait had been affected.
She loved her work so after 1982 she continued her work as an accountant. However she was still seeing doctors regularly and was having medication and morphine injections when the pain was bad.
By the late 1980s or early 1990s the pain was really bad again and became progressively worse. That was when she started to notice that her leg was really giving her a lot of trouble. She was having daily morphine injections as well 4x 80mg OxyContin daily as her back would spasm. When she travelled for work she would carry a letter from her GP so she could obtain morphine wherever she was working.
In cross-examination she said that her right leg started giving her trouble in the early 1990s. She said she probably would have told Dr Bentivoglio about it when she saw him first in March 1991, or subsequently, and that maybe he had failed to record it because it was not so bad. She did not know if she had actually complained about her right leg. She agreed that in 2011 when she had seen an occupational therapist she had not mentioned weakness in the right leg, only problems in relation to her right hip. She thought maybe referring to the occupational therapist had covered it. She also had not told Dr McGill or Dr Mellick about her right leg.
When she saw Dr Bentivoglio in 1999 he told her she had arachnoiditis but there was nothing that could be done for it.
She said was forced into retirement in 2001 because she had become so reliant on medication that she was getting forgetful. Following her retirement, her condition continued to deteriorate. She started drinking heavily which she has found to be a very effective analgesic. She described her condition since 2001 as ‘hopeless’. Her legs get very weak, especially her left leg which shakes. She said her left leg, since the second operation, has always been weaker. Occasionally she gets cramps in the right leg, but the cramps occur mainly in her left leg at night, with such excruciating pain that she is unable to stand. Her toes are often numb. She said that her left leg is slightly worse than the right. She said her left leg is atrophied. She described her legs now as ’wobbly’, morning and night. She continues to have back pain and has back spasms every second night. She no longer experiences foot drop other than when she is very tired. She does have pain in her left leg down to her ankle which comes most days with her back pain.
Since 2007-8 she required the use of one, or sometimes two, walking sticks, particularly outside the home. Inside the home she was able to move around from one piece of furniture to another, but outside the home generally she required the assistance of walking sticks or a shopping trolley to lean on when she went shopping. She can walk a short distance, such as around the block but her legs ache if she walks a long way. She has difficulty negotiating stairs and uneven ground. She can drive the short distance to the shops and the hotel.
During the 1980s and 1990s she did the housework herself. By the 2000s the housework wasn’t being done at all. She also required a carer from May 2010. For two-three years before that a friend helped her.
To relieve her pain she continues to take very significant quantities of morphine-based pain-killing medications, to which she is now addicted. She currently attends the hotel every day and has become a chronic alcoholic.
MEDICAL EVIDENCE – TREATING DOCTORS
Dr Philip Marnie, surgeon, provided a certificate dated 19 September 1978 in which he diagnosed sciatica due to a lumbosacral disc lesion, which was consistent with a fall from a human pyramid. In a report dated 5 February 1979, Dr Marnie noted that the Applicant had been admitted to Ryde Hospital on 1 July 1978. The doctor recorded the Applicant's complaints of pain in her back radiating down her left lower limb. He noted that discography performed on 28 November 1978 confirmed rupture of the L4/L5 disc, and that he intended to excise the disc. Dr Marnie confirmed, in a further report dated 28 March 1979, that the Applicant underwent L4/L5 excision on 19 February 1979. In a further report dated 10 April 1979, Dr Marnie noted that the Applicant was 'making satisfactory progress postoperatively’.
In a report dated 22 June 1979, Dr Hedberg, orthopaedic surgeon, accepted the diagnosis of an L4/L5 disc lesion, and noted that there was still some residual radiculitis. The doctor accepted that it was caused by the incident of 17 June 1978 and not to any other event. The doctor noted that the Applicant was still improving following removal of the prolapsed portion of the disc, and that she was unfit for sedentary duties for the following three months.
In a further report dated 17 October 1979, Dr Marnie noted that the Applicant had recently had an acute episode of low back pain and had been admitted to Royal North Shore Hospital under the care of Dr Michael Ryan. Dr Marnie felt that it would be wise for the Applicant to continue with the exercise program. In a further report dated 3 March 1980, Dr Marnie noted the Applicant's complaints of increased pain and weakness in her left lower limb.
Dr Ryan reported on 18 February 1980 and 11 April 1980 that the Applicant had been admitted to hospital in relation to her increasing back pain and underwent a spinal fusion operation on 19 March 1980. Dr Ryan reported again on 11 June 1980 that it was ‘far too early to give an estimate of her permanent level of physical disability’. When he saw her again in February 1982, he noted that the Applicant's lumbar spine was still very stiff but she was capable of straight leg-raising on both sides to 80 degrees. On 5 July 1982, Dr Ryan reported that the Applicant was re-admitted to hospital because of continuing low back pain, and that surgical exploration of the region L4 to SI was performed on 22 March 1982, which showed a complete and mature spinal fusion. Post-operatively, the Applicant was reported to have 'manifested the same bizarre gait which she demonstrated after her spinal fusion in March 1980, and as this had no organic basis it was simply disregarded and her gait gradually improved'.
The Applicant was again admitted to hospital in March 1984 with back pain and headache after, a few days earlier, having fallen off scaffolding, landing on her feet and jarring her back. She had severe L-S pain radiating up spine to occipital and causing severe occipital-frontal headache. She was given morphine which relieved the headache but the back pain persisted at mild level, gradually worsening.
In a report dated 17 October 1985, Dr Ryan commented that in view of the unusual features of the Applicant's symptoms on presentation 'an accurate prediction about her future incapacity is impossible'. The doctor felt that the most likely outcome was for her to have intermittent periods where work was difficult during which time she would require complete rest or physical treatment. The doctor felt that the Applicant's condition was unlikely to render her totally incapacitated for work.
In documents produced under summons from Royal North Shore Hospital, a clinical note by E H Morgan dated from about May 1986, details that the Applicant had been managing her low back problem fairly well and had not had a day off work on account of her back for six years. The note also details that the pain had become quite troublesome over the previous few months, had a burning quality when severe, and was exacerbated with slight rotational movements.
An Accident and Emergency form detailed that the Applicant presented to Royal North Shore Hospital on 30 January 1989 with severe back pain which 'worsened over last three weeks following a four wheel drive excursion to Fraser Island'.
Dr Ian Farey, orthopaedic and trauma surgeon, reported to Dr Ryan on 24 March 1989 that the Applicant had mild thoracic spondylosis. The doctor took a history that the Applicant had thoracic back pain for approximately three to four years, which was 'of spontaneous onset’. According to the doctor, she did not have pain at the time; her only symptomatology was tenderness over a pressure point. The Applicant also did not complain of any radiation to the chest wall or to the lower limbs and nor did she complain about any weakness, paraesthesia or bladder or bowel disturbance. The doctor felt that the Applicant had minimal disability at the time, and that he would not offer her any surgical treatment. However, he felt that, if symptoms recurred, the Applicant may well be a candidate for a thoracic fusion.
Dr Seamus Dalton, rehabilitation physician, provided a report to Dr Oswald dated 22 May 1989. He noted that over the past 12 to 18 months the Applicant had been getting continual upper back pain, and referred to her admission to hospital in January that year when she had a severe episode of pain. The doctor noted that whilst the Applicant's symptoms had improved, she still complained of thoracic and lower lumbar pain. The doctor recommended physiotherapy to gently mobilise the thoracic spine and an intensive lumbar and abdominal strengthening program as well as taking up swimming on a regular basis.
Dr John Bentivoglio, orthopaedic surgeon, provided a report dated 8 March 1999. The doctor relevantly noted that the Applicant continued to experience back pain despite laminectomy and an L4-Sl spinal fusion. The doctor felt that the Applicant had attained her optimal level of improvement. He did not feel that any further aggressive lines of treatment were indicated. The doctor felt that the Applicant had had appropriate pain clinic management and even that had not got rid of her symptoms. The doctor considered that it was appropriate she continue with her medication regime. On 6 April 1999 Dr Bentivoglio reported that an MRI scan showed possible arachnoiditis at L3/L4, the site of the Applicant’s previous laminectomy. The doctor commented that this was insoluble in terms of surgical treatment and the only form of treatment was to see pain clinic doctors for her back complaint.
On 11 November 2002, Dr Bentivoglio diagnosed arachnoiditis, stating that there was a 'minor' or 'minimal' contribution by employment to the condition. The doctor recommended treatment in a pain clinic. Dr Bentivoglio reported further on 14 November 2002 that the Applicant had developed arachnoiditis secondary to her initial injury and surgery. The doctor noted that the condition could not be treated surgically, but that it occasionally responded to aggressive pain management with modalities of treatment such as dorsal column stimulators. The doctor felt that the Applicant had 'attained her optimal level of improvement' and commented that she would always have pain present in her back region together with peripheral radiation. He confirmed that her ongoing complaints had come about secondary to complications caused by her initial injury. Dr Bentivoglio reported on 14 August 2006 that the Applicant continued to have significant symptoms in her back and neck regions, which was not improved by pain management. The doctor noted that the Applicant required an increase in her pain medication. He did not consider that surgical treatment had anything to offer the Applicant.
On 23 February 2003, Dr Damato, general practitioner, noted that the Applicant was suffering from chronic lower back aches, which were partially relieved by physiotherapy. On 1 July 2003 Dr Damato noted that the Applicant required strong analgesics for management of her severe lower back pain. By letter dated 14 September 2009, Dr Damato confirmed that the Applicant suffered from adhesive arachnoiditis, which was caused by the accident in 1978. The doctor noted that the dye called Myodil, used for a myelogram, had caused the disease, which had created chronic severe and debilitating pain.
MEDICAL EVIDENCE: MEDICO-LEGAL REPORTS
Dr James Bodel, orthopaedic surgeon, provided a report dated 17 May 2011. He noted that the Applicant mobilised with great difficulty, had a slight restriction of neck flexion, a restricted range of shoulder movement, but no lack of elbow, wrist or hand movement. The doctor diagnosed a disc rupture at the lumbosacral junction following which the Applicant had ‘developed neck pain, shoulder girdle pain, right hip pain...and significant psychological and psychosocial difficulties’. The doctor considered that the arachnoiditis, although not clinically diagnosed until recently, had been present since soon after the original injury and surgery. Dr Bodel considered that the Applicant's clinical condition was permanent and ascertainable prior to 1 December 1988, but that the condition had deteriorated over time, was steadily deteriorating and would continue indefinitely. The doctor assessed 36 per cent whole person impairment based on 20 per cent whole person impairment under Table 9.6 and 20 per cent whole person impairment under Table 9.5 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (Second Edition). In a further report dated 19 August 2011, Dr Bodel stated that, of the Applicant’s total percentage of whole person impairment, only 9 per cent whole person impairment could be attributed to matters arising after 1 December 1988.
Dr Bentivoglio, who had previously treated the Applicant, provided a further report dated 31 May 2011, in which he noted discal damage at the L3/L4 level of her lumbar spine region with subsequent discal damage at lower levels. The doctor also considered that the most recent investigations showed evidence of arachnoiditis, which was causing ongoing back symptoms and that no treatment would alleviate those symptoms. He commented that ‘certainly this lady's spinal condition was permanent prior to 1 December 1988’ and that her back complaints since 1989 were a result of natural wear and tear, together with the Applicant’s normal ageing process. Dr Bentivoglio was also of the view that the Applicant has now developed neck problems presumably as a result of the initial jarring injury to the neck of 1978, which had slowly developed since that time. There were referred symptoms into the shoulders and arms. Dr Bentivoglio’s view was that the Applicant’s prognosis was poor and that her complaints resulted from the specific incident in June 1978.
As a result of the Applicant’s injuries, applying the Comcare guides, the Applicant had a 23 per cent whole person impairment rating due to her back and an 8 per cent whole person impairment rating in respect of her neck.
In a further report dated 13 September 2011, Dr Bentivoglio noted that the Applicant's arachnoiditis developed as a result of surgical procedures, and would have developed as a result of her original disc excision. The doctor was of the opinion that, since 1989, 75 per cent of the Applicant's deterioration related to the original injury in 1978, and 25 per cent was attributable to natural constitutional wearing with the ageing process. He considered the Applicant has a 5 per cent permanent loss of efficient use of each of the legs at or above the knee, a 5 per cent permanent loss of each of the arms at or above the elbow as a result of the referred symptoms from the neck and shoulders, and that the Applicant’s arachnoiditis developed solely as a result of the surgical procedures that had been undertaken.
Dr Ross Mellick, consultant neurologist, reported on 22 July 2011 that ‘there has been a continuum of back pain from the time of the initial injury to the present’, and that the existing spinal condition would continue with increased pain occurring as a result of age-related degenerative disease with the passage of time. In a supplementary report, of the same date, Dr Mellick considered that the Applicant was permanently impaired, with the impairment having emanated in a major degree from the period subsequent to 1 December 1988. However, the doctor also attributed some of the permanent impairment to the period prior to 1 December 1988.
The doctor provided two later reports dated 26 March 2012 and 30 March 2012. In the first, referring to arachnoiditis, he wrote that the condition ‘may be symptomless but may also produce symptoms and signs, the symptoms involving low back pain and other symptoms with a radicular distribution’. He also observed that contrast dyes which were used in the past might also result in a non-infective inflammatory response producing arachnoiditis. He wrote that he thought it was more likely than not that arachnoiditis developed soon after the original injury and spinal surgery. In the second report he wrote that he considered that as a result of his recent neurological examination, he regarded the circumstances leading to his findings to have emanated in a major degree from the period prior to 1 December 1988.
In his evidence Dr Mellick said that there was no radiological evidence of arachnoiditis, but that did not mean that she did not have that condition. He considered that the Applicant’s arachnoiditis developed soon after the original injury and spinal surgery.
In cross-examination Dr Mellick said that the Applicant would have had minor degenerative changes as early as 1978 but that, at that time, they were asymptomatic. Deterioration was as a result of the injury, surgery, time, and maybe other things. He agreed that her need for two walking sticks when he saw her was a significant progression of the underlying degenerative condition caused by the surgery and other factors. He agreed that spinal fusion places additional stresses particularly on the vertebrae above the levels of fusion and that as a consequence the levels above the fusion may prematurely degenerate. He said that disc bulging may be part and parcel of the degenerative disease. His said that there was no part of the history which he obtained from the Applicant which revealed any significant event since 1988 that had impacted in any significant way her condition. On examination he found nothing wrong with her right leg. He said that arachnoiditis can be a difficult condition to diagnose, but he did not make such a diagnosis. He could not say that she had arachnoiditis but it would be wrong to say that she definitely did not. The radiological evidence only meant that there was no radiological evidence of arachnoiditis. He did not think it was possible on the basis of the existing clinical picture to deny the contribution to that picture from arachnoiditis.
Dr Neil McGill, consultant rheumatologist, to whom the Applicant had previously been referred for treatment, provided two reports dated 11 May 2011. The doctor reported that at the time of examination the Applicant experienced constant pain in the lower back and in the left lower limb. He also stated that there was no objective finding to support a diagnosis of arachnoiditis. The doctor accepted that the Applicant suffered permanent impairment as a result of her lumbar spine condition, with the impairment having become permanent from 5 September 1982 following recovery from the minor surgical procedure performed by Dr Ryan on 24 March 1982. Accordingly, Dr McGill felt that the Applicant's condition became permanent prior to 1 December 1988.
His opinion was that it was unlikely that the Applicant had clinical problems related to arachnoiditis and had never had the condition, which he described as a ‘persistent and commonly progressive disorder’. He came to that view on the basis that, for the condition to clinically cause problems it causes tethering the nerve roots and impairing the function of the nerve roots in the cauda equine, and there are neurological signs. The Applicant however had no neurological signs in the lower limbs.
He considered that her left lower limb symptoms are appropriately considered as part of her low back pain problem.
He said that was no evidence to suggest the presence of arachnoiditis; there was nothing to support it clinically or on the MRI. He said that it was very unlikely she had it because it’s a progressive condition, so if she had had it, you would expect to see evidence on the MRI now. He could not, however exclude it with absolute 100 per cent certainty, neither could almost any condition be excluded with that level of certainty.
If, in fact, the Applicant had suffered from arachnoiditis, the condition usually arises as a result of surgery or sometimes from the use of contrast agents of the sort that were used many years ago for myelograms. In his view the event that would have potentially made her develop arachnoiditis was her surgery, and that her last surgery was in 1982.
He observed in his evidence that the pattern of left lower limb symptoms that the Applicant currently describes is very similar to that which she described in the 1980s to Dr Ryan, as documented by him. He observed that if someone has nerve root compression causing radicular problems in the lower limbs, then that is usually associated with loss of function, but somatic referred pain is generally not associated with loss of function.
He observed that the Applicant has had a number of other health problems which have impacted on her overall health of life. She has had problems with drug use - both alcohol and prescribed drugs - and substantial other health problems which could impact on her overall functional capacity, as well as her increasing age. He did not think there is anything to suggest that her back lesion has influenced the function of her left lower limb to a greater degree than was the case in the 1980s; she has not developed any neurological compression that would influence the function of her lower limbs.
He confirmed that on examination she did not make any complaint of symptoms affecting the right leg; she talked about a furry feeling involving the entire left lower limb, that sensation in the entire left lower limb felt weaker than in the right, but there was no suggestion of any right lower limb symptom. He made no finding on examination in relation to the right leg which would suggest any impairment affecting that limb. She resisted movements of both knees and both hips, with a report of low back pain, but there was no evidence of any impairment of function of the lower limbs.
In his report he had expressed the opinion that any impairment of the back was permanent from at least 5 September 1982, that is, about six months after the surgery in March 1982 which confirmed the fusion was solid and in which the screws were removed.
In cross-examination he said that other changes in the Applicant’s spine were consistent with her age. He said that changes that can be seen on an MRI are ‘not unimportant’ in terms of whether people feel pain.
He said there was no clinical sign of neurological deficit that one would normally expect to see in arachnoiditis, and that the most recent MRI said that there was no arachnoiditis. He described arachnoiditis as ‘an unlikely diagnosis’.
CONSIDERATION
The Applicant’s claim was on two alternate bases. Firstly, that her claim falls to be assessed under the SRC Act, rather than under the 1971 Act. The Applicant’s alternative submission was that she had established a case that she has an entitlement to lump-sum compensation under the 1971 Act, for the loss of use of her legs.
Applicant’s Primary Submission
The Applicant contended that, prima facie, the SRC Act applies: s 124(1), and the respondent bears the onus of establishing otherwise. There is, however, ample authority at Federal Court level and Full Federal Court level to establish that there is, in fact, no onus which operates in this Tribunal: McDonald v Director-General of Social Security (1984) 6 ALD 6. The Tribunal is to arrive at the correct and preferable decision, and it is not incumbent upon the Respondent to show that s 39(14) does apply or that s 124(4) does not, any more than it is incumbent upon the Applicant to establish either of those two things.
The Applicant submitted that the nature and quality of the Applicant’s impairment has deteriorated to such an extent beyond the commencement of the SRC Act that it was qualitatively and quantitatively a new impairment. Her deterioration led to total incapacity weekly payments; the need for a carer; the development of a need for walking sticks; and the development of arachnoiditis. There was no dispute that in the event that the 1971 Act were found to apply, then the Applicant has no entitlement for permanent impairment compensation in respect of a back, because the 1971 Act simply did not provide anything in relation to the back. It was submitted for the Applicant, however, that her impairment was not permanent prior to the commencement of the SRC Act (1 December 1988) such that it is compensable under s 24 of the SRC Act.
The Respondent contended that there is no liability to pay compensation to the Applicant for any permanent impairment suffered as a result of her accepted back injury, and that any impairment suffered by her as a result of the accepted back injury was permanent prior to 1 December 1988. Further, the Respondent submitted, there has been no identifiable or qualitative change in the underlying pathophysiological condition suffered by the Applicant. The medical evidence - principally the opinions of Dr Bodel, Dr Bentivoglio and Dr McGill - supports a finding that there has been a gradual worsening or steady deterioration in the Applicant's back injury over time, both before and after 1 December 1988. To the extent that there has been any increase in the degree of impairment suffered by the Applicant as a result of her back injury since 1 December 1988, that does not constitute a new impairment and therefore there is no liability to pay compensation pursuant to the SRC Act.
In substance, s 124(3) provides that compensation is not payable under the SRC Act in respect of permanent impairment being an impairment that occurred before the commencement of the Act, if the person has already received lump-sum compensation, or the person is not entitled to receive lump-sum compensation in respect of the impairment under the 1971 Act. It was common ground that in respect of the Applicant’s back, there was no such entitlement.
In Department of Defence v West (1998) 50 ALD 712 O’Connor and Merkel JJ, Heerey J dissenting. Merkel J said:
The present case requires a resolution of the question left unresolved in the current state of the authorities, and that is whether a deterioration in a permanent impairment, which existed as at 1 December 1988, is capable of constituting a new permanent impairment. The caution expressed in relation to Blackman by Burchett and Gummow JJ in Brennan, and adopted by the Full Court in Levett, suggests a reluctance to accept that a substantial variation or a significant deterioration in a person’s permanent impairment is incapable of constituting a permanent impairment which is different to that which existed prior to the variation or deterioration.
In relation to the dissenting decision of Heerey J, Merkel J wrote that
The essential difference between his Honour’s approach and the one which I have adopted is that I have concluded that it is not appropriate to characterise the relevant permanent impairment solely by reference to a loss of use, or malfunction, of part of the body or bodily system or function without regard to the nature and extent of the loss of use or malfunction. In my view, the nature and extent of the loss of use or malfunction is critical to determining whether an impairment has changed to such an extent that it is a further or new impairment. His Honour’s conclusion must treat a slight loss of use of a limb, which progresses to a total loss of use as the same permanent impairment. For the reasons set out above, I do not accept that this is so.
The Applicant submitted that on a proper reading of West, the need for a pathophysiological change is not necessary; it is enough that there is a change of a sufficient nature and quality in the Applicant’s complaints to bring it under the SRC Act. The submission was to the effect that this should be interpreted broadly and that it is enough that there is a worsening that goes beyond a natural deterioration due to the degeneration of the underlying condition.
The Respondent referred me to Comcare v Maida (2002) 36 AAR 69 which post-dated West. There Mansfield J, endorsed the following summary of the state of the law:
The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment. If there is no change in the underlying pathophysiological condition causing an impairment any worsening of that impairment will not constitute a new or distinct impairment. A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying pathophysiological condition so that there has been a qualitative change to the impairment, that is the development of a new impairment.
The Applicant contended that to the extent that the decision of Mansfield J in Maida differs from the Full Court decision in West the Tribunal is bound by West.
In Comcare Australia v Mathieson (2004) 79 ALD 518 at [53] although Weinberg J expressed some reservations about the term ‘pathophysiological’, he agreed with the use of it, as referred to by Mansfield J in Maida.
The cases were reviewed recently in Johnson and Military Rehabilitation and Compensation Commission (2011) AATA 443. The Tribunal set out relevant principles including that an impairment may deteriorate to such an extent that it is qualitatively and quantitatively a new impairment and, after reviewing the authorities, considered that such a finding requires a change in the underlying pathophysiological condition.
I also am of the view that the correct approach is that the Tribunal must be satisfied that the Applicant’s impairment has deteriorated to such an extent that it is qualitatively and quantitatively a new impairment as evidenced by a pathophysiological change. In West the court found that gradual worsening of the degree of an impairment does not suffice to amount to a new impairment. There is nothing in the reasoning of the majority judgment in West that overcomes the need for some clear evidentiary basis for a finding in relation to the extent of the deterioration. Maida identifies the need for a change in the Applicant’s underlying pathophysiological condition. There is, in my view, no inconsistency between West and Maida.
The Applicant submitted that, in any event, in this matter, there was evidence of changed pathology.
The Applicant’s evidence, it was submitted, revealed ‘a descent into invalidity’ although, the Applicant submitted, that at the time of the introduction of the SRC Act there was a clear picture that she had had a good result from surgery. The Applicant’s evidence was that following the injury she underwent a series of operations on her back, the last of which was in March 1982. She had ongoing pain and stiffness affecting her lower back which fluctuated and worsened over time. As to the stiffness in her back, that also worsened over the years. Before the spinal fusion in 1980 she had complained of increased pain and weakness affecting her left leg. That problem also continued after the fusion operation and fluctuated from time to time. Also, as far back as 1982, her gait had been affected. From the earliest days she had pain radiating down the left leg, some in the right, but the left leg was worse. Her evidence was that the pain started to get really bad in the late 80s or early 90s.
She thought she had become worse. She had also taken up drinking, but that only became a problem, she said, after she lost her job in 2001. She started using walking sticks only about four or five years ago. She said she was getting progressively worse and weaker in the legs. She noted that her left leg had always been weak from the second operation, but she was falling over. She can walk short distances but her legs ache when she walks a long way.She gave evidence of cramps and numbness. Her left leg, which she said has atrophied, is now only slightly worse than her right. Her back goes into spasm on average every second night. She is unable to dress herself completely. She was doing her housework through the 1980s. By the 2000s friends would do it for her. Since May 2010 she has had a carer.
Although the Applicant professed to have a very good memory of her medical history, I observe that some of the medical events being considered are now up to 30 odd years ago. The Applicant, on her own evidence, is addicted to prescription medication and is a chronic alcoholic. Her evidence must, it seems to me, be approached with some caution.
It is useful to consider the available medical evidence before and after the commencement of the SRC Act. By 1985 Dr Ryan was of the view that prediction about the Applicant’s future incapacity was impossible because of her unusual presentation. It was submitted that this was because the Applicant’s condition was not sufficiently stabilised. The doctor in fact observed that there was psychological overlay. The doctor opined that the most likely outcome was that she would have intermittent periods where work would be difficult, and during which time she would require complete rest or physical treatment. At that time he considered that her condition was unlikely to render her totally incapacitated for work. In May 1986 a clinical note in Royal North Shore Hospital records noted her pain had become quite troublesome, had a burning quality when severe, and was exacerbated with slight rotational movements.
Following Dr Ryan’s report, there is no evidence of any substantial treatment until March 1989, when she saw another orthopaedic surgeon, Dr Farey. Due to the relative proximity of the date to the commencement date of the SRC Act, and in circumstances where there was no medical evidence immediately preceding the commencement, Dr Farey’s report should be an especially useful indicator of the Applicant's impairment at the relevant time. The Applicant’s complaint, as recorded by Dr Farey, was that she presented with a three to four year history of thoracic back pain, which had not previously been referred to. He found her to have an excellent range of motion in the thoracolumbar spine, which was well coordinated and without muscle spasm.Neurologically, she was normal. X-rays showed only a solid L4/S1 fusion. In terms of any other pathology, there was some minimal osteophytic lipping at T5 to T8. Her only symptom was pain over a [n unidentified] trigger point. Dr Farey wrote that she had minimal disability, and he would not suggest any surgical treatment. She was advised to continue exercising and it was noted that should her previous symptoms recur, she might be a candidate for thoracic fusion. The Applicant submitted that the thoracic back pain was new pathology because that area of the back that was not the subject of any earlier surgical intervention.
Dr Mellick was critical of Dr Farey’s examination, noting that Dr Farey was not a neurologist, that reflexes were not mentioned, nor were sensory changes in the legs and the doctor had noted the comments about her having minimal disability in the back.
Only a few months later, on 22 May 1989, Dr Dalton reported on the Applicant. He took a history of her having been admitted to hospital with severe pain in January that year, which history was either not given to Dr Farey or not recorded by Dr Farey. In contrast to the history recorded by Dr Farey, the Applicant’s main complaint to Dr Dalton was lower back pain which she said she had experienced for the previous five years. Despite earlier advice, she had only had minimal physiotherapy and rehabilitation. Dr Dalton found her range of movement to be reasonable, considering the previous surgery.
Dr Mellick, when commenting on Dr Dalton’s report, did not accept that the reason Dr Dalton had not recorded any neurological signs in the legs was because the Applicant did not complain of anything that drew his attention to those particular parts of the body. Dr Mellick rejected that explanation on the basis that if a physical examination is done properly things will often be found that the patient is unaware of. Dr Dalton did not appear to have undertaken reflexes and sensation tests.
It is difficult to reconcile Dr Farey’s report with all later medical evidence. Both Dr Mellick and Dr McGill accepted that the fusion of part of the spine can lead to the extra stresses above the level of fusion, but Dr Farey alone refers to thoracic abnormalities. In any event, he had taken a history of that pain being present for three to four years, which does not support the Applicant’s contention that this was a new pathology.
There was then another gap in the available medical history to October 1994. Dr Ryan wrote of the Applicant’s signs and symptoms, which he found to be identical to those of a previous (unidentified) aggravation of her problem in 1992. In March 1999 Dr Bentivoglio’s assessment was said to show a significant deterioration in the Applicant’s condition. By May 2001 the Applicant was reported as having told her GP, Dr Damato, that for the preceding year she was having of difficulties with work because of increasing pain. In November 2001 Dr Bentivoglio reported to Comcare that the Applicant probably could not perform her normal work duties.
The Applicant relied on the report of Dr Bodel dated 17 May 2011. The Respondent submitted that Dr Bodel’s report does not support the contention that there has been a change in the underlying pathophysiological condition suffered by the Applicant. Although Dr Bodel wrote about arachnoiditis, he did not find any other worsening of the Applicant’s condition; there is no reference to any development of degenerative change at the L3/L4 levels and he squarely attributed the deterioration to arachnoiditis which he considered to have been present since soon after the original injury (notwithstanding that it may not have been clinically diagnosed until Dr Bentivoglio used that terminology in 1999). He wrote in respect of the deterioration of the Applicant’s clinical circumstances since 1989 and that that deterioration was steady and would continue indefinitely. It was submitted that that description is consistent with what was said Mansfield J in Maida that:
The progression of a disease or a gradual worsening of the degree of impairment which does not, in itself, constitute a new or distinct impairment.
Dr Bodel concluded that the Applicant’s clinical condition was permanent and ascertainable prior to 1 December 1988.
Similarly, Dr Bentivoglio in his report dated 31 May 2011, also relied on by the Applicant, concluded that the Applicant's spinal condition was permanent prior to 1 December 1988. The doctor wrote that the deterioration of the Applicant’s back since 1989 was due to natural wear and tear together with the normal ageing process. In his later report, however, the doctor attributed 75 per cent of the Applicant's deterioration from 1989 to her original injury, and at most only 25 per cent to natural constitutional wearing with the ageing process. I agree with the Respondent's submission that Dr Bentivoglio's statement is completely at odds with his earlier report, and that there was no explanation for that change.
The Respondent submitted that Dr Mellick made no concession that the worsening of the Applicant’s back condition since 1988 resulted from pathophysiological change. Dr Mellick agreed that if the Applicant had 20 years without any need for a walking stick and then for some years has need for walking sticks either all the time or intermittently, that would be consistent with significant worsening of her underlying condition. Dr Mellick however noted that the Applicant has very significant secondary psychological consequences affecting her condition. His evidence in relation to the deterioration was that nothing dramatically happened and, in my view, it was clear that Dr Mellick was not conceding any pathophysiological change. Similarly, Dr McGill was steadfast in saying that any deterioration since 1989 is due to factors other than pathophysiological change in the lumbar-sacral spine. He said that it had to do with a pain syndrome, which had manifested itself for a long time, with alcohol consumption and drug use, as well as psychological factors.
In relation to the degenerative change at the L3/L4 level, Dr McGill observed that an x-ray performed in 1989 showed no degenerative change at L3/L4, whereas the MRI scan, a far more sensitive investigation than an x-ray performed in 2011, does. There was nothing to establish that those changes were not present as far back as 1989 when the x-ray was performed. In any event, Dr McGill’s evidence was quite firm – the changes shown on the MRI scan in 2011 were no more advanced than one would expect. There was nothing to link that change to the effects of the Applicant’s surgery.
It was unclear from the Applicant‘s submission if it was contended that the development of arachnoiditis constituted a pathophysiological change, and, in fairness to the Applicant, I have proceeded on the basis that this was the Applicant’s contention. The Respondent submitted that it is not certain that the Applicant even has arachnoiditis. Dr Bentivoglio thought in his 6 April 1989 report, on the basis of an MRI scan, that it showed the possibility of her having arachnoiditis at the L3/L4 level. The MRI scan dated 25 August 2011 found no evidence of arachnoiditis.
Dr Bodel in his report of 17 May 2011 was of the view that arachnoiditis had been present since soon after the original injury and surgery, although it might not have been diagnosed until Dr Bentivoglio used that particular terms. Dr Bentivoglio, in his report of 31 May 2011, wrote that he considered the Applicant’s arachnoiditis developed as a result of her initial surgery or surgical treatment on her back. In his report of 13 September 2011, he noted that arachnoiditis develops as a result of surgical procedures.
When asked about Dr Bodel’s views, Dr Mellick conceded the possibility of there having been some arachnoiditis present at some stage, but thought it more likely than not that the condition developed soon after the original injury and surgery. In relation to the 2011 MRI scan, Dr Mellick said that it does not exclude the possibility of the condition.
Dr McGill, in his report of 11 May 2011 considered there were no objective findings to support that possibility. He thought it was unlikely that the Applicant has clinical problems relating to arachnoiditis, in view of the similarity of the symptoms and signs currently, when compared with those documented in the 1980s.
It is difficult to reconcile the various views in relation to arachnoiditis. In the end, I do not need to come to a concluded view. The evidence for the Applicant, at its highest, is that she has the condition, but all doctors who accepted she may have the condition considered that it had arisen out of the Applicant‘s back surgery, the last of which was in 1982. There was no medical specialist who gave an opinion supporting the contention that arachnoiditis has resulted in some pathophysiological change, which postdates 1 December 1988.
In summary, I find that the nature and quality of the Applicant’s impairment has not deteriorated to such an extent beyond the commencement of the SRC Act, that it was qualitatively and quantitatively a new impairment.
Applicant’s Alternative Submission
The Applicant’s alternate submission was that there is a loss of use of her legs which, under s 39 of the 1971 Act, entitled her to compensation for the loss of efficient use of the legs.
As to the correct approach in determining whether there is a loss of efficient use of the legs, the Applicant referred me to a series of New South Wales decisions as authority for the proposition that a reduced use of a limb, directly caused by pain in another part of the body, constitutes a loss of efficient use of the limb within the meaning of the Workers Compensation Act 1926, which relevantly for present purposes is almost identical terms to s 39 of the 1971 Act. For example, in Cummins v G James Safety Glass (1994) 10 NSWCCR 688 the court said that all that is required is that the limb cannot be used as efficiently for the purposes for which it was intended to be used. I did not find it helpful to consider a different compensation regime.
The Applicant‘s evidence was that left leg problem existed from the first operation in February 1979. At various times straight leg-raising was impeded on clinical examination. The Applicant’s evidence that sometimes she requires two walking sticks.
The Respondent submitted that the Applicant was totally incapacitated for work from 2001 until February 2012 when, by reason of her age, she ceased to be entitled to any further incapacity payments.
Section 39(14) provides that compensation is not payable in respect of a condition where that condition contributes even in part to incapacity to work. The Applicant submitted that s 39(14) does not apply because the Applicant‘s leg condition is not incapacitating, and even with a 15 per cent of efficient use of each of her legs which is the highest assessment that the Applicant has (per Dr Bodel) – that she could continue her work as an accountant.
The Applicant’s submission was that the provision clearly anticipates that if there is a future incapacity, the lump sum will be in some way a down payment for those payments of incapacity. Once the Applicant turned 65, she could not remain on weekly payments. She is entitled to now bring a claim for her lump sum, unrestricted by s 39(14).
The Applicant’s case was that there is no injury to the legs themselves, but any impairment of the legs resulted from injury to the back, either by way of the injury which occurred originally, or as a result of degenerative change following the surgery that she had for the back. In either case, it is reliant upon the injury to the back, and the back is certainly what keeps the Applicant, at least in part – and s 39(14) only refers to “in part or in whole” – off work. In Dr McGill’s report he referred to the combination of the physical effects of the injury in June 1978, and her psychological and emotional makeup led to her becoming unfit for work, and he thought she would remain so permanently.
Section 124(4) has the effect of applying the provisions of s 39(14) of the 1971 Act to the claim she now makes. In Morris v Comcare (2007) 97 ALD 189 the Tribunal adopted the approach of Sackville J in Razmovski v Telstra Corporation Ltd; Hoyle v Telstra Corporation Ltd (1997) 24 AAR 544. His Honour held that section 124(3)(b):
Does not have the effect of applying section 39(14) of the 1971 Act to persons who suffered a permanent impairment as a result of a work related injury before the commencing day of the SRC Act, rather that provision was intended to exclude from compensation only those persons whose pre-commencing day of physical impairment couldn’t be covered by section 39(14) of the 1971 Act, because the table of maims simply didn’t identify that form of impairment.
Sackville J went on to hold that s 124(4) (which was not dealt with by the Tribunal in Morris), was intended to incorporate into the SRC Act the exclusion effected by s 39(14) of the 1971 Act in respect of totally incapacitated persons. His Honour stated that:
The clear intention of section 124(4) is that a claimant who has suffered a pre‑commencing date permanent impairment should receive no lump sum compensation in respect of that impairment if at the time of the claim ...
The decision was upheld on appeal by the Full Federal Court in Hoyle v Telstra Corporation Ltd; Razmovski v Telstra Corporation Limited (1997) 25 AAR 240.
I was referred to Comcare v Pantic [2012] FCA 388 where Finn J observed at paragraph 36 of his decision:
The Act’s concern was not with identifying periods when a claim for permanent impairment could have been but was not made; rather, it was with the particular compensation regime which an employee was able to invoke at the time he or she made a claim.
The Applicant’s claim for permanent impairment was made on 20 September 2010, and she had been certificated totally incapacitated for work by Dr Damato, her GP, from 22 May 2001. Dr McGill also found the Applicant totally incapacitated for work and said that she was likely to remain so. Indeed, there was no evidence that she has substantially improved to the point where her incapacity is less than total.
The provision in s 124(4) that liability be determined as if the SRC Act had not been enacted means, plainly in my view, that s 39(14) of the 1971 Act must be treated as having continuing application for claims for permanent impairment benefits, regardless of the cessation of entitlement to incapacity payments on attaining the age of 65. Had the SRC Act not been enacted, the Applicant would have continued to receive incapacity payments since there was no provision in the 1971 Act equivalent to s 23(1) of the SRC Act, which says that entitlement in respect of incapacity for such payments ceases at age 65.
Section 39(14) of the 1971 Act is, in my view, unequivocal in its terms, providing that the preclusion from entitlement to permanent impairment compensation continues for so long as the total incapacity continues. Therefore the left leg, in particular, but effectively both legs, are caught by s 124(4) of the SRC Act and s 39(14) of the 1971 Act such that any entitlement the Applicant would have in respect of them is nil.
Further, in respect of the right leg, in particular, there is little or no mention anywhere in the medical documents of symptoms or complaints affecting the right leg. Dr Bodel, in his report of 19 August 2011, found a 15 per cent loss of efficient use of each leg as a consequence of injury to the back, but examination of his report, reveals no justification for that assessment whatsoever; he records neither any complaint in relation to the right leg, nor any findings which would lead you to believe that there was any impairment of the right leg. Dr Bentivoglio, in his report of 13 September 2011, says there’s a five per cent loss of efficient use of each lower limb at or above the knee. Again, there is no basis for the assessment in relation to the right leg from his report; examination of his report reveals neither complaints nor findings of any kind in relation to the right leg. Dr Bentivoglio says in his report of 13 September 2011 that the left leg impairment he identifies is attributable to numbness affecting that leg, but provided no explanation at all for the assessment that he arrives at in relation to the right leg. Dr McGill made no findings which would indicate impairment of function of either leg, and Dr Mellick received no complaint of any kind in relation to the Applicant’s right leg. In those circumstances I do not accept the assessments of Dr Bodel or Dr Bentivoglio, in relation to the right leg. Moreover, so far as the left leg is concerned, I do not accept the assessments provided by either Dr Bodel or Dr Bentivoglio, in light of their obviously unsupported and erroneous assessments in relation to the right leg.
In summary, I also reject the Applicant‘s second submission, and find that there is no entitlement under s 39 of the 1971 Act in respect of the legs.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
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Associate
20 July 2012
Date of hearing 2 and 3 April and 21 May 2012 Counsel for the Applicant Mr M Daley Solicitor for the Applicant Ms J Sharah, Sharah & Associates Counsel for the Respondent Mr B Kelly Solicitor for the Respondent Ms E Baggett, DLA Piper
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