Whitley and Military Rehabilitation and Compensation Commission

[2005] AATA 919

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 919

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/1063

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID JASON WHITLEY

Applicant

And MILITARY REHABILITATION
AND COMPENSATION
COMMISSION

Respondent

DECISION

Tribunal

Ms M J Carstairs,  Member

Dr K P Kennedy, Member

Date21 September 2005

PlaceBrisbane

Decision The Tribunal varies the decision under review, namely the decision dated 7 March 2005, to provide that on 29 March 2003 Mr Whitely suffered an aggravation of cervical spondylosis, which is an injury within the meaning of the Safety Rehabilitation and Compensation Act 1988.

................[Sgd].........................
   M J Carstairs
  Presiding Member

CATCHWORDS

COMPENSATION – incident in army reserve – nature of injury – aggravation of prior injury - cervical spondylosis - liability for compensation

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14,

REASONS FOR DECISION

21 September 2005

Ms M J Carstairs, Member

Dr K P Kennedy, Member

1.      David Jason Whitley has served with the Australian Army Reserve since the age of seventeen.  On 29 March 2003 Mr Whitley sustained an injury to his neck when he lost his footing during an exercise with the army reserve and fell while carrying his pack and equipment.  He was then aged thirty-one years.

2.      Mr Whitley lodged a claim for cervical spine injury shortly afterwards, and the Commission has accepted that he sustained a compensable injury described as neck strain.  Mr Whitley asks us to consider whether this is the best description of the injury that he suffered.  Essentially he claims that there were more lasting physical effects from the fall in 2003, warranting a description other than strain which suggests injury to the soft tissues only and no permanent damage. 

3.      Medical opinions differ about the nature of the injury and its relation to Mr Whitley’s work in the army reserve and we had the benefit of orthopaedic opinion on this point.  The issues for the Tribunal are:

§  What incidents have occurred when Mr Whitley has been serving with the army reserve?

§  What is the best diagnostic description of Mr Whitley’s neck condition?

§  Should the Commission accept liability for cervical degeneration at the point of the spine referred to as at the C3/C4 joint in the cervical spine?

THE LEGISLATION

4.      Section 14 of the Safety Rehabilitation and Compensation Act 1988 is the central provision of the Act which creates the liability, subject to other provisions of the Act, to pay compensation in respect of injury.  Injury is a term defined in s4 of the Act.  That section provides that injury will be compensable where it arises out of, or in the course of, the employee's employment or where there is an aggravation of a physical or mental injury.  In regard to questions of aggravation of injury, it does not matter whether that injury arose in the course of employment; it is sufficient that the aggravation had that employment connection.

WHAT INCIDENTS HAVE OCCURRED IN THE ARMY RESERVE?

5.      Mr Whitley stated that he had no neck problems before he joined the army reserve.  He now suffers from neck pain and described his muscles knotting up, though he said that this is relieved by physiotherapy.  He said that he has neck pain about four days a week, often with a headache.  He said that he lives with it, and he can tolerate the neck pain with his work, though the headaches are less easy to tolerate.

6.      Mr Whitley believes that there have been two incidents that have occurred when he has been on army exercises that account for the condition of his neck.  The first of these incidents took place on 21 May 1997 at Shoalwater Bay.  He was carrying a 25 litre jerry-can of water while participating in clearing up the site after the weekend exercises when he overbalanced after heaving the jerry-can onto his shoulder.  Mr Whitley described to Dr P Sharwood, orthopaedic surgeon, (exhibit A5) that he was struck on the right side of the head and neck by the jerry-can and experienced pain and stiffness in his neck.  Mr Whitley said he reported to the field medical unit, and was treated there by an army medical officer, and was placed on light duties for a couple of days.  He said that his civilian employment as a draftsman is light office work and he was able to return to it without any time off.

7.      However Mr Whitley said he continued to experience difficulties with his neck. He said he has attended a physiotherapist intermittently.  Dr Dickinson, general practitioner (exhibit A4), said that his practice records showed that Mr Whitley had complained of headaches and neck aches since October 1997, and he had referred him then to a physiotherapist in October 1997 after Mr Whitley sustained a neck injury during the army exercise.  Mr Whitley said the physiotherapist left it up to him to come in and see him if he felt the need.  Dr Sharwood, orthopaedic surgeon commented that Mr Whitley seemed to obtain benefit from the physiotherapy, except for experiencing some symptoms in 2001 that led to his general practitioner referring him for x-rays and CT scans.  Their results cleared Mr Whitley of any abnormality at that time.  Despite this Dr Dickinson said that Mr Whitley continued to complain of neck pain and headaches and he treated him on occasions for neck soreness and muscle strain before the fall in 2003.  

8.      The circumstances of the 1997 incident were not seriously contested.  Mr Whitley did not seek compensation in relation to that incident, but he reported its occurrence to his superiors.  His army medical records note a cervical spine interscapular joint injury with secondary muscle spasm after carrying stores from a vehicle (T5).  Mr Whitley referred to the 1997 injury in the claim he made for the 2003 injury (T8) where a question on the form asked if he had ever suffered a similar injury or illness in the past.  We accept his evidence about the circumstances in which the 1997 incident occurred and accept the diagnosis of the condition ascribed at that time by the army medical practitioner.

9.      The second incident took place when Mr Whitley was on exercises with the army reserve at Tin Can Bay on 29 March 2003.  He was one of a party of four, working in minimal visibility at night when he slipped on loose gravel and fell forward landing, it seems, on his knees.  Mr Whitley was responsible for operating the Battery communications equipment.  At the time, he was carrying, along with his pack and rifle, two radios on his back, returning these to base after use in the exercise.  The radios were dislodged from their carriers when he fell and they struck him on the back of the head as they were propelled forward.  Major A Fleming countersigned the incident and fatality report (T10) stating that he was nearby when the incident occurred. 

10.     Mr Whitley described in the Incident and Fatality Report (T10) that he hurt upper cervical spine and lower skull as a result of a fall in the field.  He told us that he experienced what he described as horrendous neck pain immediately, and later that night the pain was so bad that he had to sleep upright.   He said he felt like there was a large knot in the back of his neck.   He was able to return to his civilian work and says that he has required little time off, preferring to put up with his symptoms.  After the injury Mr Whitley went to his general practitioner on 8 April 2003 (T7) and was referred for physiotherapy.

11.     We found Mr Whitley to be careful and measured in giving his evidence and in all important matters his oral evidence was supported by the documentary evidence.  There is no question that he had two incidents in his work with the army reserve which he reported to his superiors when they occurred and which he showed no significant delay in having treated by health professionals.  We are satisfied that the 1997 and 2003 incidents occurred as Mr Whitley described them.  The only question is did either or both have lasting impact on the condition of his neck?

12.     The physiotherapist’s notes (exhibit R4) recorded that on 14 April 2003, Mr Whitley attended complaining of a sore neck, and he described the fall during the army reserve exercise.  However Mr Whitley had also been seeing the physiotherapist in the week or so before the March 2003 incident, with attendances recorded on 20 March and 24 March 2003 to treat sore upper neck and some thoracic symptoms.  Mr Whitley continued to complain of neck pain at physiotherapy sessions in April and May 2003, though a note on 13 May 2003 recorded that he was feeling much better, with less headaches. 

13.     There was a break in Mr Whitley’s physiotherapy treatments between May and July 2003 and when he came back in July the physiotherapist noted that his symptoms had worsened, and would need some sessions to settle them down again.  Mr Whitley reported to the physiotherapist that he was having occasional headaches and his neck pain was on and off, though he was sore at the end of a day’s work.  A note dated October 2003 referred to soreness at the base of the neck, with Mr Whitley telling the physiotherapist that he felt some improvement after Dr Dickinson gave him a cortisone injection.  Mr Whitley told us however that improvement proved to be short lived.

WHAT IS THE APPROPRIATE DIAGNOSIS FOR MR WHITLEY’S NECK CONDITION?

14.     We had the reports of Dr H Khursandi and Dr P Sharwood, orthopaedic surgeons who both addressed issues of causation.  These specialists agreed on a number of points.  They agreed that Mr Whitley has degeneration of the cervical spine, as evidenced by narrowing of the C3/C4 disc space. This was confirmed by x-ray of Mr Whitley’s cervical spine on 21 August 2003.  The doctors agreed that the condition had not been present in the reported results of the CT scans in 2001.  Dr Sharwood also noted the reported results of a CT scan in September 2003 showing degenerative changes of the apophyseal joints, again at C3/C4.  Dr Sharwood said that the narrowing of the discs warranted the diagnosis of cervical spondylosis, a term which Dr Sharwood uses where there is arthritic change to facet joints; narrowing of disc spaces; and where there are changes, for instance spurring, at the uncovertebral joints.  Dr Khursandi told us that he limits the use of the term cervical spondylosis to the first of these only – that is, to arthritic changes to the facet joint on either side of the discs.  He said that he uses the term cervical degeneration to cover disc changes as well as changes at the facet joints.

15.     We accept that Mr Whitley suffers from cervical degeneration on the basis of these agreed conclusions from the specialists.

16.     Dr H Khursandi (T13) said that Mr Whitley’s persistent neck symptoms were due to degeneration in his cervical spine particularly at C3/C4, but he concluded that the condition was not related to the army reserve incident(s) and would have happened without Mr Whitley’s employment in the army reserve.  He said that symptomatic cervical degeneration was not uncommon in thirty year-olds and he estimated he would treat twelve to fifteen such cases a year.  Dr Sharwood however said that symptomatic cervical spondylosis in thirty year-olds was unusual.

17.     Dr Khursandi said that Mr Whitley told him about the 1997 incident, and he had the report from that time but no other medical records for Mr Whitley when he saw him for the first time in September 2003.  Dr Khursandi said that in the 1997 incident, the impact of the jerry-can was not directly on the neck joints, and as a result would not cause spondylosis.  He said that a true joint injury such as spondylosis requires a dislocation or compression of the joint; a high acceleration injury; or a direct axial impact onto the joint.  He described the jerry-can incident as being an indirect sideways impact, capable of causing soft tissue injury but incapable of causing true joint injury.  He said that the absence of evidence of pathology or of cervical spondylosis in the CT scan undertaken in 2001 confirmed for him his views of the limited effects of 1997 incident.

18.     Dr Khursandi disagreed with Dr Sharwood’s conclusion that the 2003 incident could have accelerated Mr Whitley’s cervical degeneration but he acknowledged that it could have aggravated it.  Dr Khursandi said that he did not observe any restriction of movement in Mr Whitley’s neck now and he said that if there had been an aggravation in 2003 Mr Whitley would have recovered within months. 

19.     Dr P Sharwood observed minimal, though permanent, restriction of Mr Whitley’s neck movement – in the order of 5% (exhibit A4).  He commented that the radiology of Mr Whitley’s neck in 1997 showed no gross abnormality or signs of damage, and a CT scan in 2001 showed no signs of disc prolapse or narrowing of disc spaces.  However he said that plain x-rays of the neck in August 2003 revealed mild narrowing of the disc space at C3/C4, which he termed early degenerative change.  He said that it is quite common for patients without injury to show evidence of cervical spondylosis but this would be expected at C5/C6, rather than at C3/C4.  Dr Sharwood said that the narrowing in Mr Whitley’s case was more likely to be the result of injury.

20.     Dr Sharwood said that the cervical spine is very vulnerable to injury, and not only to axial compression injuries.  Axial compression injuries he said will normally result in crush fractures rather than disc degeneration such as Mr Whitley has.  He said that something has contributed to the damage to that disc space, and because it is unusual for only C3/C4 to be involved then one needs to look for another cause.  Dr Sharwood said that the explanation for Mr Whitley’s degenerative change was provided, in the first place, by the 1997 incident, and by an aggravation of this when the next incident occurred in 2003.  Dr Sharwood said that Mr Whitley would have recovered from the aggravation in a matter of months.

21.      We preferred the evidence of Dr Sharwood to that of Dr Khursandi.  Dr Khursandi’s conclusions, particularly as expressed in his first written report (T13), were expressed shortly, and somewhat dogmatically but without providing the reasoning that allows the reader to understand how those conclusions were reached.  He did acknowledge in his oral evidence that it was possible that there had been contribution from trauma when Mr Whitley sustained the impact of the jerry-can of water onto his neck.  He had not earlier allowed for this in his written reports.  That is, he moved closer to Dr Sharwood’s position on that point.  In other areas their views are similar.  The degeneration at C3/C4 is agreed; both see the 2003 incident as productive of an injury, the effects of which Mr Whitley would recover from in time.

22.     We took into account the following matters:

§  Mr Whitely is relatively young to have degenerative changes in his neck.

§   Mr Whitley’s had no neck problems before the incidents in the army reserve.

§  He experienced immediate pain and discomfort after the 2003 incident, and had regular treatment for his neck during that year.

§  The opinion of Dr Sharwood that the changes seen in x-rays in 2003 could well have resulted from the 1997 incident even allowing for the fact that the 2001 films had been normal.

23.     We concluded that the sequence of events, where a clearly identified trauma occurred in 2003, supports the conclusion that Mr Whitley suffered an aggravation of his pre-existing cervical spondylosis, reflected in disc degeneration at C3/C4.   We accept Dr Sharwood’s evidence that the 1997 incident, in the absence of any other obvious occasion of injury, is implicated in the early degenerative changes that can be seen in this young man.  That is, Mr Whitley’s injury is better described as an aggravation of cervical spondylosis than as neck strain, which we note was not a term adopted by either orthopaedic specialist.

24.     Mr Whitley said that he continues to have headaches regularly.  However Dr Sharwood suggests that his complaint of headaches requires further investigation, as in his opinion they are unrelated to Mr Whitley’s cervical spine injury.  Accepting Dr Sharwood’s evidence we are satisfied that there have been no sufficient investigations of Mr Whitley’s headaches that would enable any conclusion to be drawn of the relationship, if any, of the headaches to injury or aggravation sustained by Mr Whitley in the army reserve.

DECISION

25.     The Tribunal varies the decision under review, namely the decision dated 7 March 2005, to provide that on 29 March 2003 Mr Whitely suffered an aggravation of cervical spondylosis, which is an injury within the meaning of the Safety Rehabilitation and Compensation Act 1988.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member and Dr KP Kennedy, Member  

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  11-12 August, 15 September 2005
Date of Decision   21 September 2005
Counsel for the Applicant         Mr D O'Gorman
Solicitor for the Applicant          Gilshenan and Luton
Counsel for the Respondent     Mr GP Long
Solicitor for the Respondent     Dibbs Barker Gosling