Whittaker and Military Rehabilitation and Compensation Commission
[2007] AATA 1240
•19 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1240
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2005/0856
GENERAL ADMINISTRATIVE DIVISION ) Re DENNIS JOHN WHITTAKER Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date19 April 2007
PlaceSydney
Decision The decision under review is affirmed.
..................[sgd].........................
Dr J D Campbell
Member
CATCHWORDS
MILITARY COMPENSATION – back and neck injury claim 1985 – liability accepted for soft tissue injury to thoracic spine 1990 – claim for permanent impairment soft tissue injury and thoracic spine september 2004.
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971, Section 39.
Safety, Rehabilitation and Compensation Act 1988, Sections 19, 24, 27, 48 and 124.
REASONS FOR DECISION
19 April 2007 Dr J D Campbell, Member 1. Mr Whittaker is a 49 year old man, who enlisted in the Army Reserve in 1981. On 27 August 1985 Mr Whittaker was involved in a motor vehicle accident whilst on duty.
2. Mr Whittaker submitted a claim for compensation for back and neck injury from the accident of 27 August, 1985 on 21 May, 1987.
3. On 13 March 1990 liability was accepted for a closed period until 31 March 1986 for a “soft tissue injury thoracic spine” arising from the accident of 27 August 1985.
4. On 22 September 2004 Mr Whittaker wrote to the compensation authority seeking lump sum and fortnightly payments as a consequence of his accepted “soft tissue injury thoracic spine”.
5. In a reconsideration decision dated 11 April, 2005, the Respondent denied Mr Whittaker’s claim for permanent impairment. The issue of incapacity payments remained unresolved, as Mr Whittaker in a letter to the Respondent received on 1 November 2004 advised the receipt of some $42,000 compensation for pain and suffering from a third party claim arising from the 1985 incident. Details of such payment have not been provided to the Respondent.
issues
6. The issue in this matter is whether Mr Whittaker is entitled to payment of compensation for permanent impairment to his thoracic spine arising from the injury of 27 August 1985. In so doing the following issues need consideration:
a) The original claim and liability acceptance;
b) The notice of the thoracic condition and the date at which this condition became permanent;
c) The assessment of current impairment of the thoracic spine; and
d) Entitlement to compensation.
decision
7. For the reasons stated later in this decision Mr Whittaker is not entitled to be paid compensation for permanent impairment to his thoracic spine arising from the injury received on 27 August 1985 for which liability was accepted for a soft tissue injury thoracic spine on 13 March 1990. In so finding, consideration was given and findings made that any permanent impairment arising from the thoracic spine injury however assessed and nominated was present prior to 1 December 1988.
background
8. The motor vehicle injury occurred on 27 August 1985. In a report from Dr C. Miller, the attending general practitioner, dated 27 February 1990, Mr Whittaker is described as having sustained a whiplash type injury to his neck and bruising to the thoracic part of his spine. Dr Miller records Mr Whittaker as complaining of pins and needles in the arms as well as stiffness and pain in the back. Dr Miller notes that an X-ray investigation was performed and revealed no abnormalities of either a recent or chronic nature. When last seen in November 1986 Dr Miller records that considerable improvement in his back pain had taken place, but that Mr Whittaker continued to complain of pain in the mid thoracic region.
9. In a report dated 11 February 1990, Dr Thompson, a consultant orthopaedic surgeon detailed Mr Whittaker’s then symptoms of “gets an ache under his left shoulder blade after a long drive, when lifting or doing things like mowing the lawn”. A past history of a lumbar strain when lifting at the meat works some eight years previously was noted. Dr Thompson noted that X-rays of the thoracic lumbar spine of 17 February 1988 showed T7-T10 vertebra body changes consistent with old Scheuermann’s changes, as did the lumbo sacral views, as evidenced by early degenerative lipping at L3-4 and L4-5.
10. Dr Thompson considered that Mr Whittaker had suffered a soft tissue strain to his thoracic region in 1985, the acute part of which had settled down, with any continuing exacerbation of symptoms arising from a pre-existing degenerative process associated with Scheuermann’s disease. Dr Thompson did not believe his then current condition was related to the accident and that he was fit to continue with Army Reserve duties, but would consider him unsuitable for activities, which involve significant amounts of digging, heavy lifting or crouching.
11. Liability was accepted by the Respondent on 13 March 1990 for a soft tissue injury – thoracic spine, for a closed period until 31 March 1986. This decision was affirmed on 2 August 1990, the Respondent having been placed on notice that Mr Whittaker’s solicitors were investigating commencing a common law claim for personal injuries arising out of the accident of 27 August 1985 (correspondence of 27 March 1990). Further issues relating to a common law claim were raised with the Respondent by Mr Whittaker’s solicitors on 25 January 1991 and responded to by the Respondent on 7 February 1991.
12. On 9 May 2000 Mr Whittaker was examined by Dr Davis, a consultant surgeon. In his report of 9 May 2000 Dr Davis noted that Mr Whittaker complained of back pain in his lower and mid back, being only able to sit or stand for half an hour before having to change position. Dr Davis was of the opinion that there was no medical reason as to why his left ankle condition or his thoracic condition would preclude him from rejoining the workforce, and that there was no reason as to why any workplace restrictions should apply.
13. On 9 October 2000 Dr Parkington, a consultant orthopaedic surgeon, detailed Mr Whittaker as complaining of neck and back pain ever since the accident in 1985, with his current symptoms being constant neck pain, neck stiffness, back stiffness on rising but no back trouble if he avoids bending or lifting. After examination and review of X-rays taken in June 2000 (lumbo sacral spine), September 2000 (cervical and thoracic spine) Dr Parkington detailed the following opinions:
· That Mr Whittaker was injured in various incidents as described during his service, none of which were particularly serious, and from all of which he has made an excellent recovery.
· I am not satisfied that he is suffering from any ankle impairment.
· I think that his neck is clinically normal.
· I do not think that either his back or ankle complaints are sufficiently severe to prevent him from working in any capacity.
· That he is not medically unfit for employment.
· I am not convinced he has true Scheuermann’s disease.
14. On 20 December 2004 Dr Bornstein, a consultant orthopaedic surgeon, detailed in a report that Mr Whittaker reported his neck and back symptoms to be static with pain in both areas, the back continuously with his neck becoming intermittently stiff with episodes of severe pain. Dr Bornstein reported an extremely restricted range of movement of the neck and back at formal examination, but more free on informal observation.
15. Dr Bornstein commented that X-rays of the cervical and thoracic spine (arranged by him) demonstrated C5/6 narrowing together with degenerative changes and foraminal encroachment on the right side at C3/4. The thoracic spine is essentially normal, with negligible osteophytes at all levels, but all disc heights are preserved. In summary Dr Bornstein stated that there is no real cause for his ongoing complaints of thoracic back pain.
16. Dr Bornstein concluded that Mr Whittaker suffers from:
· Cervical disc degenerative disease at C5/6;
· Minimal degenerative changes at multiple levels of thoracic spine;
· The conditions are permanent;
· That there is not a probable causal relationship between the conditions diagnosed and the military employment, with Dr Bornstein finding no reason as to why Mr Whittaker could not be gainfully employed.
17. On 15 November 2005 Professor Sambrook, a consultant rheumatologist, noted in a report that Mr Whittaker’s current symptoms were fairly constant pain in the neck, upper back or interscapular region. Following examination and view of an X-ray report of the cervical spine of 10 December 2004, Professor Sambrook concluded that Mr Whittaker was suffering from a cervical as opposed to a thoracic spine condition; that the cervical condition arose either as secondary to trauma or that it is degenerative based on age, with Professor Sambrook favouring the likelihood of trauma. Professor Sambrook considered the cervical condition to be probably permanent prior to 1 December, 1998.
mr whittaker’s evidence
18. Mr Whittaker described his educational (Year 10) and work history, commencing as a boiler maker apprentice on leaving school. A closed head injury in a motor accident in 1973 was described as necessitating hospitalisation at Lismore Base Hospital for four to six weeks. Following this Mr Whittaker described his work activities as a builder’s labourer for his father (two years); panel beating course in 1976; meat worker for four and a half years; building a house, builder’s labourer to 1985; security guard in Byron Bay from 1985 for four years, then part-time from 1990; with his last paid work, checking licenses, in 2000.
19. Mr Whittaker stated that he was in the Army Reserve from 1982 to 1995, suffered an injury to his right ankle in 1984, the motor vehicle accident in 1985, suffered an injury to his left ankle in 1994, suffered a closed abdominal condition in 1984 together with hearing loss and Tinnitus, all resulting from various incidents during his part-time reserve service as a driver in infantry.
20. Mr Whittaker informed the Tribunal that he had been receiving a disability support pension payment since 1998. He stated that he had no trouble with his neck or back prior to the motor vehicle accident in 1985, apart from an episode of lower back pain while working at the Casino Abattoir in the late seventies. He stated that following the accident in August 1985, the pain in his neck and difficulty with neck movement gradually lessened through to December 1985. By 1988 following investigation and treatment by Dr Miller, he changed in late 1985 to the care of Dr Stewart for continuing general practitioner care. By 1988 his condition had not improved, but he had learnt to live with enduring symptoms then as he does today of pain in the neck, worse on the left side, together with some low back pain with occasional tingling down the legs, left more so than the right.
schedule of various injuries
21. In discussions between the parties, it would appear that the following is the best summation of issues surrounding each of Mr Whittaker’s claimed injures:
(a) Right Ankle:
Date of Injury: 12 March 1984
Date of Claim: 22 November 2000
Liability Accepted: 30 November 2000
Claim for Permanent Impairment: 24 September 2004
Claim for Permanent Impairment
Rejected: 28 February 2005
Medical Expenses: Paid
(b) Left Ankle:
Date of Injury: 11 May 1994
Date of Claim: 20 February 1995
Liability Accepted: 5 August 2003
Medical Expenses: Paid $4,099
Permanent Impairment: $40,185.57
Incapacity payments of $25,050, plus a redemption payment of $40,077.42 less any over payments made in late 2006.
(c) Hearing Loss:
Claim Made: 18 August 1998
Liability Accepted: 10 January 2000
Payment: $643.82.
(d) Tinnitus:
Claim Made: 22 November 2000.
Permanent Impairment Claim: 21 September 2004.
Claim Refused: 1 April 2005
(e) Closed Abdominal Injury (trauma):
Date of Injury: 10 September 1984
Claim Made: 22 November 2000
Claim Suspended: 26 October 2001
(f) Neck and Back Injury:
Date of Injury: 7 August 1985
Date of Claim: 19 June 1987Liability accepted for soft tissue injury to
thoracic spine on: 13 March 1990
Medical Expenses: Paid $1,682.77
Claim for Permanent Impairment: September 2004
Common Law Claim Settled: 1991 approx. with a settlement payment of $42,000 (approx.)
consideration and findings
22. Mr Whittaker detailed the circumstances of his work history and his many injuries with reasonable clarity, considering the time frame involved. In relation to the particular claim for permanent impairment for a thoracic spine condition, his history as to the causative event, and subsequent clinical symptoms were particular, although the same clarity was not apparent when remembering if, when or what X-rays were taken and knowledge of any particular results. Nevertheless I noted Mr Whittaker’s statements that the symptoms of posterior neck and upper back pain in the interscapular region were features of his injury in late 1985 through to 1988 and have remained essentially unchanged since that time.
23. While noting that there is an absence of radiographic material to help subsequent clinicians understand and accept Dr Thompson’s opinion that in February 1990, there was radiological evidence consistent with a diagnosis of old Scheuermann’s disease, Dr Thompson clearly records a history of Mr Whittaker complaining of pain beneath the left shoulder blade with prolonged driving and lifting. I note that it was this report that led to the acceptance of liability for a soft tissue injury to the thoracic spine.
24. I note the following subsequent clinical reports:
· Dr Miller, attending general practitioner, in his report of 27 February 2000 details a history of a whiplash injury to his neck and bruising to the thoracic part of his spine – complaints recorded of pins and needles in the arms and pain and stiffness in back. X-rays taken were reported as showing no abnormalities of either a recent or chronic nature.
· Dr Davis, consultant surgeon, in a report dated 9 May 2000 detailed complaints of pain in lower and mid back, occasioned by prolonged sitting and standing. Dr Davis was of the opinion that there was no medical reason as to why his left ankle or his thoracic condition would preclude him from re-entering the workforce.
· Dr Parkington, consultant orthopaedic surgeon, in a report dated 9 October 2000 noted symptoms of neck and back pain since the accident. Following examination of X-rays taken in June and September 2000, Dr Parkington concluded that Mr Whittaker was not suffering from any ankle impairments, his neck was clinically normal, that neither his ankle or back complaints were sufficiently severe to prevent him from working in any capacity and that he is not medically unfit for employment.
· Dr Bornstein, consultant orthopaedic surgeon, in a report dated 20 December 2004, noted neck and back symptoms to be static with continuous pain in his back and his neck intermittently stiff, with episodes of severe pain. Dr Bornstein, having viewed X-rays of the cervical and thoracic spine, considered the thoracic spine to be essentially normal, with no real cause for on-going complaints of thoracic back pain. Dr Bornstein concluded that Mr Whittaker suffers from cervical disc degeneration at C5/6 and minimal degenerative changes at multiple levels of the thoracic spine. Dr Bornstein concluded that there was not a probable causal link between the conditions diagnosed and his military employment and that Mr Whittaker was fit for gainful employment.
· Professor Sambrook, consultant rheumatologist, in a report dated 15 November 2005, noted Mr Whittaker’s complaints as fairly constant pain in his neck, upper back or inter scapular region. Following examination and a review of X-rays taken 10 December 2004, Professor Sambrook concluded that Mr Whittaker was suffering from a cervical as opposed to thoracic spinal condition with the cervical condition probably permanent prior to 1 December 1988.
25. In the light of such clinical opinion, I conclude that Mr Whittaker has the following condition:
(a) Minor degenerative changes in the thoracic spine of little clinical significance and causing no significant impairment. This condition became permanent prior to 1 December 1988 (reliance on all clinical reports, but particularly those of Drs Miller, Davis, Parkington, Bornstein and Sambrook).
(b) A cervical spine condition with degenerative changes at C5/6 and foraminal encroachment at C3/4 on the right side (reliance on reports of Drs Bornstein and Sambrook).
(c) That the cervical spine condition probably became permanent prior to 1 December 1998 (Professor Sambrook).
(d) That there is no evidence before me to support any incapacity or medical expenses payments arising from his accepted condition (I acknowledge that neither is before me) soft tissue injury thoracic spine at this time. .
26. In relation to the issue of the claim for permanent impairment arising from the injury to the thoracic spine Mr Whittaker cannot succeed for two reasons, namely:
(a) there is no evidence to support a significant (more than negligible) permanent impairment of the thoracic spine;
(b) even if there was evidence to support such a significant permanent impairment (more than negligible), the finding that such an impairment, however rated, was permanent prior to 1 December 1998, necessitates that any assessment of such impairment must be undertaken under the Compensation (Commonwealth Government Employees) Act 1971 (‘the 1971 Act’) as prescribed by section 124 of the Safety, Rehabilitation and Compensation Act 1988 (‘the 1988 Act’). Assessment of such spinal impairments (whether cervical, thoracic or lumbosacral) are undertaken pursuant to section 39 of the 1971 Act, which does not make provision for a lump sum payment for any spinal impairment, including cervical, thoracic or lumbosacral spinal impairments. In the circumstances nominated in this matter no payment for a permanent impairment of the thoracic spine can be made, regardless as to whether the permanent impairment is negligible or significant (section 124(3) of the 1988 Act).
27. Further I would note the following:
·In relation to the neck injury claimed on 21 May 1987 as part of the neck and back injury arising from the motor vehicle accident on 27 August 1985 – the neck injury element of the claim has not been the subject of any determination by the Respondent. In such circumstances I am unable to take the matter further as there is no section 62 reconsideration on the issue before me.
·If indeed the neck injury element is progressed, and on the evidence before me, continuing difficulties exist for a lump sum payment for permanent cervical spine impairment, for the same reason nominated that section 39 of the 1971 Act makes no provision for lump sum payments for spinal impairments.
·Similarly I observe that the issue of incapacity payments cannot be further progressed until an appropriate determination and reconsideration decision are made by the Respondent. To make such determinations in relation to his thoracic and any other spinal claims, the details of the common law claim and its terms of settlement must be available to the decision maker in order that issues arising out of Section 48 of the 1988 Act be considered.
·Finally it is evident that some of Mr Whittaker’s claims (closed abdominal injury, incapacity payments right ankle) are suspended on account of difficulties in communicating with Mr Whittaker. While noting that Mr Whittaker has been receiving disability support pension since 1998, it is apparent that all issues unresolved, be resolved in best circumstances, with Mr Whittaker ensuring that he notify the Respondent of any intended significant absences overseas or elsewhere.
determination
28. The decision under review is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.
Signed: [sgd] Mwela Kapapa
AssociateDate/s of Hearing 16 March 2007
Date of Decision 19 April 2007
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Ms Harvee Dejean
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