WILLIAM CAPPER and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2009] AATA 107

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 107

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0136

VETERANS' APPEALS DIVISION		)
Re		WILLIAM CAPPER

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date17 February 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd]..............................

Senior Member

CATCHWORDS

COMPENSATION – inflammatory bronchitis of a hypersensitive nature –  applicant in receipt of compensation for permanent impairment – whether further compensation warranted – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 28

REASONS FOR DECISION

17 February 2009 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      The applicant, Mr William Capper, enlisted in the Royal Australian Air Force (“RAAF”) in 1969 and attained the rank of Warrant Officer.  Mr Capper was discharged from the RAAF in 1993.  He suffers from a disease to which his military service contributed in a material degree.  Mr Capper has received compensation on the basis that he has a permanent impairment of 30% under Table 13.1 of the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”).  I have to decide whether the applicant is entitled to receive further compensation for the permanent impairment arising from his inflammatory bronchitis condition.

PRIOR DECISIONS

2.      On 15 May 2002, it was determined that Mr Capper suffered a disease to which his military service contributed in a material degree, namely inflammatory bronchitis of a hypersensitive nature.  The date of injury was determined to be 19 March 2002, being the date of diagnosis of the condition[1].

[1] T 8.

3.      On 10 June 2003, it was determined that Mr Capper suffered a whole person impairment as a result of his condition and that the degree of impairment was 10% under Table 13.1 of the Guide[2].

[2] T 19.

4.      On 29 March 2005, it was determined that the degree of impairment was 30% under Table 13.1 of the Guide[3].  This determination was based on a reassessment by Dr Brown dated 8 December 2004[4].

[3] T 21.

[4] T 20.

5.      On 4 April 2007, the Military Rehabilitation and Compensation Commission (“the Commission”) determined that no further compensation was payable to Mr Capper[5].  The Commission based this decision on an assessment by Dr Edwards that Mr Capper has a whole person impairment of 20%[6].  The Commission affirmed this determination on 14 November 2007[7] after receiving a request for reconsideration from Mr Capper[8]. 

[5] T 32.

[6] T 29.

[7] T 47.

[8] T 34.

RELEVANT LEGISLATION

6.      The relevant legislation that I have to administer is the Safety, Rehabilitation and Compensation Act1988 (“the Act”). Payment of compensation where an injury to an employee results in permanent impairment is provided for by s 24 of the Act. Comcare is required under the Act to determine the degree of permanent impairment under the provisions of the approved Guide: s 24(5).

7. The Guide was approved under s 28 of the Act. It was common ground that the second edition of the Guide, which applies to claims received after 28 February 2006, does not apply to this application.

8. The Act provides that the degree of permanent impairment shall be expressed as a percentage: s 24(6). No amount of compensation is payable to an employee where Comcare determines that the degree of permanent impairment is less than 10%.

MEDICAL EVIDENCE

9.      I have reviewed all of the medical reports that have been made in relation to the condition of Mr Capper, and will discuss a number of them.  All of the reports are listed in the report of Dr Oliver dated 12 September 2008[9].

Dr Barry Berglind

[9] Exhibit 6, pp 1-3.

10.     A report of Dr Berglind, dated 19 March 2002, was in evidence before me[10].  In that report, Dr Berglind diagnosed Mr Capper as having inflammatory bronchitis of a hypersensitive nature.

Dr Maurice Heiner

[10] T 5.

11.     Dr Heiner is the current treating physician of Mr Capper.  The report of Dr Heiner of 5 August 2008[11] and his supplementary report of 24 September 2008[12] were both admitted in evidence.  Dr Heiner reports that approximately every three weeks Mr Capper suffers from frequent chest infections and/or bronchitis.  Dr Heiner states that Mr Capper’s shortness of breath is persistent and he produces up to 3/4 of a cup of yellow sputum every day.

[11] Exhibit 4.

[12] Exhibit 5.

12.     Dr Heiner, in his supplementary report of 24 September 2008, concluded: “According to Table 13.1 and the legal premise, this gentleman has a degree of impairment...of 95% of the whole person”.  He continued: “To summarise according to how I have been told to do so by the Table, it is my opinion that I estimate Mr Capper to have a 70% impairment percentage of whole person impairment, and that the severity of attacks causes significant interference, with most activities of daily living other than self care”.  I should mention that Dr Heiner has questioned the suitability of Table 13.1 to the situation of Mr Capper.

13.     Dr Heiner, called to give evidence by Mr Capper, stated that Mr Capper has had isocyanate exposure.  His supplementary report states that patients who are suffering from isocyanate induced asthma frequently have symptomology after their removal from the offending environment.  The supplementary report also states there are studies which report persistent respiratory symptoms in 83% of workers who have been away from isocyanate for four years.

14.     Dr Heiner, in his oral evidence, considered Mr Capper would have had a permanent condition at the time of exposure to isocyanates.

Dr William Oliver

15.     A report of Dr Oliver dated 12 September 2008 was admitted into evidence[13].  Dr Oliver interviewed and examined Mr Capper in his rooms on 20 August 2008.  His report states that Mr Capper has “daily symptoms and these can cause significant interference with most activities of daily living other than self care”.  Dr Oliver reported that the “symptoms do not last all day” and he considered that Mr Capper had “a level of impairment of 20% as also suggested by Dr Edwards”.

[13] Exhibit 6.

16.     In his evidence, Dr Oliver pointed out it was difficult to assess the condition of Mr Capper.  He stated that spirometric testing on Mr Capper always produced a normal result.  Dr Oliver mentioned that this has been the finding of Drs Brown and Edwards.

Dr Robert Edwards

17.     Dr Edwards, thoracic and sleep physician, made a report on Mr Capper dated 16 November 2006[14].  In that report, Dr Edwards opined that “on his history in accordance with Table 13.1, I anticipate that he has a 50% permanent impairment”.  Dr Edwards when making that report also completed questionaries on Table 13.1.  On the questionnaire which refers to activities of daily living, Dr Edwards noted that dysphea as well as wheeze interfered with standing and functions of mobility.  On the questionnaire which requires the insertion of a percentage description of the level of impairment, Dr Edwards placed a circle around the 50% description. This states “Attacks occupy up to 50% of the time AND cause significant interference with most activities of daily living other then self care”.

[14] T 27.

18.     On 1 December 2006, a delegate of the Commission wrote to Dr Edwards requesting him to “provide a reassessment of Mr Capper’s Permanent Impairment in accordance with the Comcare guides”[15].  On 6 December 2006, Dr Edwards wrote to the delegate[16].  In that letter he remarked: “Following your correspondence I have adjusted Mr Capper’s impairment to 20%, which is in keeping with that of his lung function impairment.  I think this probably also more accurately reflects his impairment”.

Dr Ian Brown

[15] T 28.

[16] T 29.

19.     Dr Brown, chest physician, has provided a number of reports on the impairment of Mr Capper since 2004, all of which were admitted into evidence.  In addition, Dr Brown acknowledged having completed a questionnaire on permanent impairment in 2004[17].

[17] Exhibit 2.

20.     On 8 December 2004, Dr Brown diagnosed Mr Capper as suffering from “chronic persisting asthma”[18].  He stated that Mr Capper has “persistent severe asthma induced by exposure to isocyanates over a prolonged period in the workplace”.  He also stated that Mr Capper “suffers severe permanent impairment as a result of his compensable condition”.  Dr Brown made an assessment that Mr Capper had a 30% whole person impairment on the basis of the frequency of attacks and sleep disturbance.

[18] T 20.

21.     In his report of 4 May 2006[19], Dr Brown stated that “the major diagnosis is asthma with a significant continuing inflammatory bronchitis.  This is likely to be related to previous isocyanate exposure”.  Dr Brown then commented on changes since his previous report of 8 December 2004, including that Mr Capper was admitted to the Wesley Hospital from 18 July to 22 July 2005 for treatment of his unstable asthma.  Dr Brown’s report acknowledges the presence of complicating factors: “The complicating factors from a functional point of view include anxiety, depression, and a possible laryngeal component to airways obstruction.  Nevertheless this does not negate the severity of his underlying inflamatory (sic) bronchitis and asthma.  The situation is also complicated by severe right sided chest wall pain, gastro-oesophageal reflux and obstructive sleep apnoea”.  Dr Brown assessed Mr Capper as having a 60% whole person impairment under Table 13.1.  In answer to my question, Dr Brown confirmed he completed the questionnaire which requires the insertion of a percentage description of the level of impairment by circling the 60% descriptor.

[19] T 26.

22.     Dr Brown provided a supplementary report of 19 September 2007[20], in which he commented upon Dr Edwards’s report dated 6 December 2006.  The latter report assesses Mr Capper as having an impairment rating of 20%.  Dr Brown commented: “I therefore cannot argue strongly against Dr Edwards’ assessment and neither do I feel the need to alter my assessment in the latest report dated 4 May 2006”.

[20] T 43.

CONSIDERATION

23.     I will first refer to the condition of Mr Capper.  I accept the report of Dr Berglind dated 19 March 2002 that Mr Capper has inflammatory bronchitis of a hypersensitive nature.  Dr Berglind gave that report as a consultant respiratory physician.  It has not been contradicted by any of the evidence before me.  I find that Mr Capper has inflammatory bronchitis of a hypersensitive nature.  I also note that his condition has been described by other practitioners under other descriptors.  As mentioned above, Dr Brown has referred to the condition as “persistent severe asthma”.

24.     There has been some consideration as to which Table in the Guide is appropriate to assess the condition of Mr Capper.  On 24 July 2002, the Senior Compensation Medical Adviser of the Department of Veterans’ Affairs considered that Table 13.1 rather than Table 2.1 was the appropriate Table[21].  I am satisfied that it was appropriate for the Commission to consider the inflammatory bronchitis condition of Mr Capper with reference to Table 13.1.  This Table (as stated in its heading) is intended for “use in the assessment of orders of the Haemopoetic System such as anemia, polycythaemia, leucocyte and platelet disorders and intermittent disorders such as asthma, migraine, tension headache, epilepsy etc”.  Whether the condition bears the description of asthma or bronchitis is not decisive.  What is important is that the condition is of such a nature as is appropriate to assess under Table 13.1.

[21] T 10.

25.     Mr Capper assisted the Tribunal in the outlines he filed before the hearing.  In his outline dated 25 November 2008, he contended that his whole person impairment had increased from 30% to 70% to 95% with reference to Table 13.1.  At the outset of the hearing Mr Capper stated (in answer to a request from the respondent) that his case is based on the report of Dr Heiner, who in his supplementary report of 24 September 2008 assessed him as having a 70% impairment percentage.

26.     Mr Capper elected not to give evidence before me.  Even though Mr Capper has a law degree, I thought it appropriate to advise him that in cases of this nature, it is usual for an applicant to tender evidence on the extent of a medical condition from the treating general practitioner.  Mr Capper did not request an opportunity to obtain evidence from his general practitioner.

27.     In making a decision on this application, I have to make a determination of the frequency, duration and severity of attacks with reference to the degree of interference with activities of daily living: see Table 13.1.  As I mentioned earlier, I did not have the benefit of any oral testimony from Mr Capper concerning the degree of interference with his activities of daily living.  He made a decision not to give evidence on this issue; evidence which could have been tested by cross-examination.  Also, I did not have the benefit of any evidence from his general practitioner, who could have provided relevant evidence in support of his claim.

28.     As required, I have examined the specialist medical reports and considered the medical witnesses’ evidence given before me.

29.     Mr Capper, in examining Dr Heiner, mentioned that he consulted Dr Heiner to be able to tender a report before this Tribunal.  Dr Heiner had not treated Mr Capper on any previous occasion.  It is for this reason during the hearing that I ruled Dr Heiner was not in any position to assess whether the condition of Mr Capper had deteriorated.  I have not placed any great weight upon the assessment of Dr Heiner.  Dr Heiner, within his supplementary report, has not been consistent in his assessment of whole person impairment, having initially opined that Mr Capper had a 95% level of impairment.  More importantly, the report does not contain an explanation of how Dr Heiner arrived at his assessment of whole person impairment.  In order to achieve a 70% assessment under the Guide, it is necessary that “Attacks occupy up to 70% of the time AND cause significant interference with most activities of daily living”.  The report of Dr Heiner does not contain any discussion of how he arrived at his differing assessment.

30. When Dr Heiner was being cross-examined, he considered that the Guide was inappropriate to assess the condition of Mr Capper. However, as I reminded the parties during the hearing, I am bound by s 28(4) of the Act to apply the Guide. The Guide has the status of a legislative instrument: s 28(3A). It is not, however, an inflexible instrument, providing that: “In the unlikely event that an employee’s impairment is of a kind that cannot be assessed in accordance with the provisions of the Guide, Comcare may direct that assessment be made under the provisions of the current American Medical Association’s Guides”: the Guide at p 5. However, no argument was presented to me as to why the condition could not be assessed under the Guide. I am aware from the evidence of Dr Oliver that Queensland WorkCover tribunals use the American Medical Association Guide.

31.     When giving evidence, Dr Heiner opined that Mr Capper’s condition became permanent at a time of chemical exposure.  The material before me discloses that the earliest there was chemical exposure was in 1987[22]. This was at a time prior to the commencement of the Act. I have not placed any weight upon Dr Heiner’s speculative conclusion, as no research evidence was tendered in support. If I were to accept Dr Heiner’s conclusion, the claim of Mr Capper would have to be assessed under the legislative regime which was in existence before the commencement of the Act.

[22] Folio 59; PT 6.

32.     Dr Heiner’s conclusion does not accord with the opinions of Dr Oliver and Dr Brown.  Preferring to rely upon the opinion of Dr Oliver[23], I find that the condition of Mr Capper became permanent in August 1996 when the diagnosis was confirmed. This assessment is consistent with that of Dr Brown who, dating the impairment as permanent to at least July 2004, opined it is likely the impairment has been permanent for up to 10 years[24].  My finding has the consequence that Mr Capper retains his entitlements under the determinations which have been provided to him.

[23] Exhibit 6, p 5 (question 9).

[24] Folio 108 (question 7); PT 26.

33.     I have placed the most weight on the report of Dr Oliver who is a practitioner of some seniority in the profession, having practised as a specialist since 1970.  I consider that he has made a comprehensive, as well as objective, examination of the condition of Mr Capper.  His report was filed in the Brisbane Registry of this Tribunal on 19 September 2008 and admitted as evidence without any objection.  Mr Capper had the opportunity to obtain medical evidence to contradict that report.

34.     In his outline dated 25 November 2008, Mr Capper contended: “Dr Oliver’s assessment of 20% (WPI) shall be proven at the AAT hearing, to lack the mandatory legal requirements of Table 13.1”.  However, no medical evidence was placed before me to challenge the accuracy of the report.  Dr Heiner did not question the assessment of Dr Oliver in his supplementary report or in his evidence.  Mr Capper, when given the opportunity to cross-examine Dr Oliver, did not challenge the assessment of Dr Oliver that the degree of whole person impairment is 20%.

35.     I observe that before Dr Oliver wrote his report he was briefed with the considerable medical documents in which Mr Capper’s condition has been discussed, including the RAAF medical records.  In contrast, the report of Dr Heiner does not disclose that he was briefed with these documents.

36.     Mr Capper has taken issue with the fact Dr Oliver was not briefed by the respondent with the determination of the respondent made on 29 March 2005.  I consider that the respondent acted fairly in not providing the determination.  This is because Dr Oliver was asked for his independent assessment uninfluenced by the determination.

37.     Dr Brown, who has provided a report that Mr Capper has a 60% level of impairment, stated that he “cannot argue strongly against Dr Edwards’ assessment”, in which Dr Edwards assessed Mr Capper as having a 20% level of impairment.  In view of these comments, I regard Dr Brown as now not being firm in his earlier assessment.  Indeed, in his evidence, Dr Brown conceded that in cases of this nature it is difficult to assess the degree of impairment.  I note that when Dr Brown wrote his report of 4 May 2006 he had difficulty in assessing lung function.  This was not the case when Dr Oliver assessed lung function.  Dr Oliver found there was mild reversible airflow obstruction confirming a diagnosis of asthma.

38.     I appreciate that the opinion of Dr Oliver is consistent with the opinion of Dr Edwards appearing in his report of 6 December 2006.

39.     For the above reasons I affirm the decision under review.

40.     For the sake of completeness, I should mention it concerned me that the histamine provocation test was administered on Mr Capper for the last time in 2002.  This is evident in the supplementary report of Dr Berglind, made on 20 April 2002.  I asked Dr Oliver whether there would be benefit in having another histamine provocation test administered to Mr Capper.  Dr Oliver did not indicate that the administration of another test would be beneficial.  In any event, such a test would need the consent of Mr Capper’s general practitioner.  This is because Mr Capper would have to not take medication for some days prior to the administration of the test.

DECISION

41.     I affirm the decision under review.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed:..............................[Sgd]................................................
  Matyas Kochardy, Research Associate

Dates of Hearing  11 and 18 December 2008
Date of Decision  17 February 2009
The applicant was self-represented
Counsel for the respondent      Charles Clarke
Solicitors for the respondent     DLA Phillips Fox