Sidney and Department of Veterans' Affairs

[2004] AATA 556

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 556

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2003/225

GENERAL ADMINISTRATIVE DIVISION		)
Re		PERRY WILLIAM KINGI SIDNEY

Applicant

And DEPARTMENT OF VETERANS’ AFFAIRS

Respondent

DECISION

Tribunal

Michael Sassella, Senior Member

Dr M D Miller AO, Member

Date1 June 2004

PlaceCanberra

Decision The reviewable decision is affirmed.  Mr Sidney qualifies for no costs associated with this application.

[sgd] M J Sassella

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – temporary aggravation of degenerative disease of lumbosacral spine – aggravation ceased by 21 August 2001 – no compensation payable after that date – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“aggravation”, “ailment”, “disease”, “injury”), 14(1)

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

REASONS FOR DECISION

May 2004 Michael Sassella, Senior Member
Dr M D Miller AO, Member

RESULT

We have found that the MCRS made the correct decision when it decided that Mr Sidney’s injury was a temporary aggravation of his underlying degenerative disease of the lumbosacral spine.  That means that Mr Sidney has no ongoing entitlement to compensation from the MCRS in respect of the injury on 24 June 2001.

BACKGROUND

1.      Perry William Kingi Sidney (“the applicant”), born 18 December 1944, is a member of the Australian Army Reserve and has been since 1970.  On 21 September 2001 he lodged with the Military Compensation and Rehabilitation Service (“MCRS”) within the Department of Veterans’ Affairs (“the respondent”) a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[1].  He claimed for lower back soreness noticed on 25 June 2001 at 7.30 am.  He reported the injury on the same day.  He said that the injury occurred when he was engaged on a driving task for the Army Reserve.  He drove a Toyota Hi-Ace bus from Sydney to Canberra between 1.30 and 5.00 pm on 24 June 2001, a Sunday afternoon.  He apparently drove through without the usual 10-15 minute break after two hours at the wheel.  Mr Sidney was asked by a senior officer if he was OK to drive without a stop and, feeling peer pressure, said Mr Sidney, he said he could drive without a rest break. 

[1] 23 May 2002 the MCRS determined to pay compensation for temporary aggravation of degenerative disease of the lumbosacral spine occurring on 24 June 2001.  The decision was that no further compensation was payable after 21 August 2001 as the service-related injury appeared to have resolved.  The delegate noted that Mr Sidney told Dr W M Wearne, an orthopaedic surgeon to whom the MCRS referred Mr Sidney, that he had experienced an episode of severe acute back pain in 1985 while working for the Snowy Mountains Hydro-Electricity Authority (“SMHEA”).  He had been off work for three months and received workers’ compensation.  Dr Wearne advised that Mr Sidney’s condition was temporarily aggravated by the incident on 24 June 2001 but that aggravation had ceased.  The condition had returned to the same state as before the June 2001 injury.

3.      Mr Sidney sought reconsideration of that decision because he still had back pains.  On 5 September 2002 the MCRS confirmed the earlier decision.  On 31 May 2003 Mr Sidney appealed to the Administrative Appeals Tribunal (“the tribunal”) against the reviewable decision dated 5 September 2002.  He was granted an extension of time to make that application.

ISSUES

4.      The issue is basically whether Mr Sidney is entitled to any compensation beyond 21 August 2001.  Mr Sidney must have suffered an injury, as defined in s 4(1) of the Act, if he is to receive any compensation under the Act.  An injury is defined in s 4(1) as:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

…

5.      Where a disease, as here, is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

6.      The definition of a disease refers to an ailment and an aggravation as relevant concepts.  These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

7.      If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

8.      In Mr Sidney’s case he has been found to have an injury in the form of an aggravation of an underlying disease.  He thus has an injury under s 14(1) of the Act.  That determination remains on foot indefinitely unless certain circumstances apply that are not present here (Australian Postal Corporation v Oudyn (2003) 73 ALD 659, 667).  Mr Sidney does not, however, qualify for compensation unless he is liable for medical expenses resulting from the compensable condition, or unless he is incapacitated for work as a result of the injury or unless he has a permanent impairment as a result of the injury.  There are other possible types of compensation such as home help and necessary appliances and aids that can be provided or paid for.  None of these appear applicable to Mr Sidney.  In order that he might obtain any of the forms of compensation at any time the MCRS would need to be satisfied on balance that Mr Sidney requires them as a result of his injury in 2001.

9.      As we said earlier, the MCRS considers that any aggravation from the driving was temporary and not such as to justify payment of any compensation after 21 August 2001.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

10.     At the hearing Mr Sidney described his problem as pain in his lower back.  He said he plays tennis, golf and walks.  He would be even more active but for the back pain and discomfort.  He finds he has pain in the following few days when he plays. 

the 1985 incident

11.     In 1985 Mr Sidney worked at the SMHEA as a storeman.  He began there in 1965.  On a day in June 1985 he began work at 7.30 am.  Late in the morning he lifted a heavy item and noticed a pain in his back.  He worked on to knock-off time at 4.30 pm and reported the pain to the supervisor.  He concentrated on clerical work for the rest of that day after the lifting incident.  He went to bed that night but at about 3.00 am he had a terrible lower back pain to the left of the spine at the base of the spine below the belt line.  He went to hospital in an ambulance, having received an injection, possibly of Morphine, at home.  He had had no earlier injuries.  In hospital he was in traction for 1 ½ days.  There was a diagnosis of sciatica.  In the three days he spent in hospital he had physiotherapy.  He had regular physiotherapy during the three months he then had off work.

12.     After he returned to work he was on restricted duties (reduced lifting) and his back improved.  He later returned to full duties and had no problems.  His back was “alright” but he was conscious of the potential problem from then onwards. 

13.     Mr Sidney left the SMHEA in 1987 and went into work in Canberra for the Australian Federal Police which was largely light work.  He retired in February 2001.

22-25 june 2001

14.     At 7.30 pm on Friday 22 June 2001 Mr Sidney drove the Toyota Hi-Ace from Canberra to Sydney.  As passengers there were five or six officers going to Sydney for a conference and a celebration.  The group reached Sydney between 10.00 and 10.30 pm.  There had been a stop south of Mittagong for food for 20 minutes.  They stayed at the Randwick Barracks in Sydney.  Mr Sidney’s back was normal.

15.     On Saturday 23 June 2001 Mr Sidney rose at 6.00 am.  He had breakfast at 8.00 am.  He jogged around the block and did a few exercises.  At home he walks or jogs 30-40 minutes every morning.  He exercises daily for 75 minutes doing back exercises.  He then drove the officers to their city conference.  Later he drove them to a dinner across the Sydney Harbour Bridge.  He collected them at about midnight and they all returned to bed at the barracks.

16.     On Sunday 24 June 2001 Mr Sidney again rose at 6.00 am and did his jogging and exercising.  After breakfast he conveyed the officers to the Rocks for a guard of honour and celebrations at 10.00 am.  He collected them at about 1.00 pm and they left for Canberra.  Mr Sidney had no back symptoms at all to this point. 

17.     On Monday 25 June 2001 Mr Sidney woke at 7.00 am with a sharp back pain.  The pain was to the left of the spine at about the belt line.  He arranged to see a doctor but could not get an appointment for several days.  He self-medicated with Voltaren tablets.  This slightly relieved the pain.

after-effects

18.     Mr Sidney said he saw his general practitioner Dr Sanderson on Wednesday 27 June 2001 at about 10.00 am.  He recalls little of that visit except that the pain was still present but was less bad.  The respondent considers that this visit did not occur.  There is no record of the visit.  There is no suggestion that Mr Sidney is untruthful in this respect. 

19.     Mr Sidney saw a Dr Bond on 28 June 2001 at Duntroon.  Dr Bond examined the back and gave him medications.  He arranged physiotherapy stretching over six to nine weeks. 

20.     After the June incident Mr Sidney still did his daily exercises.  Several new exercises were added.  Mr Sidney said that as at now his pain comes and goes.  He finds playing golf brings on the pain.  He has pain-free days.  In a normal month he has four or five pain-free days. 

21.     At the time of the hearing Mr Sidney’s back was a bit tender and his left leg calf muscle had pins and needles.  He had had no pain when he rose that morning.  He went for a walk and then had some discomfort and stiffness.  He drove his 1999 Ford Falcon to the tribunal and found his back stiff when he left the car.  The left leg pins and needles are associated with playing golf and climbing hills.  Mr Sidney’s doctor thinks the pills he takes for blood pressure might be the cause.  The pins and needles came on this year.  He also mentioned left and right calf soreness.

22.     Mr Sidney explained that he was pressing his compensation claim because someone at the Department of Veterans’ Affairs had told him he should continue as far as he can.  He is hopeful of some monetary benefit. 

23.     In cross-examination Mr S Whybrow, for the Department of Veterans’ Affairs, ascertained that Mr Sidney has had sporadic lower back pain ever since 1985 and has done exercise to try and fend off the pain.  Mr Sidney agreed that there could be a link between the sports he plays and his back pain.  He has pain after golfing, walking or sitting on a chair.  He plays golf weekly and tennis socially.  He would like to play more.  He said that the pain he has after playing golf and tennis used to occur before the June 2001 injury.

24.     Mr Whybrow referred to clinical notes by physiotherapist Nicole Murray.  She recorded that on the first visit on 3 July 2001 the back was much improved.  Mr Sidney referred to two golf games he played between 27 June and 3 July 2001.  Her notes for 5, 10 and 17 July 2001 indicate the back as getting progressively back to full range of movement and a pain-free state by mid to late August 2001. 

25.     Mr Whybrow referred also to a Department of Defence “Comprehensive Preventive Health Examination” report dated 12 October 2001.  In that form there was a questionnaire asking, among other things, whether Mr Sidney had had any persistent back or joint pain and any persistent muscular pain or weakness.  Mr Sidney had said no to both these questions. 

26.     Dr G Speldewinde, a specialist in rehabilitation, pain and musculoskeletal medicine, gave evidence at the tribunal hearing.  He reported on Mr Sidney on 28 August 2002 after having examined him.  Dr Speldewinde considered from his history that Mr Sidney has a “grumbling sacroiliac backache”.  This was consistent with Mr Sidney’s account of the 1985 SMHEA accident.  Dr Speldewinde noted that Mr Sidney was again playing sport soon after the June 2001 injury and he saw the 2001 flare up as having settled back to the previous level by August 2001, having considered Ms Murray’s notes. 

27.     Dr Speldewinde regarded the discomfort and stiffness experienced in 2002 in the back and legs as consistent with Mr Sidney’s pre-existing back injury and his activity exercising.  He considered there to be an underlying pathology.  He said that “grumbling pain” can either go away or it can worsen.  He saw the June 2001 incident as one of many temporary flare ups.  Dr Speldewinde thought the pins and needles could be from a spinal canal stenosis, or they could be unrelated.

28.     Mr Whybrow summarised the respondent’s position.  He suggested that the driving incident on 24 June 2001 caused a flare up in the symptoms stemming from Mr Sidney’s underlying lower back condition.  This led to a successful compensation claim which was effective for a closed period to 21 August 2001.  Mr Whybrow relied on Dr Speldewinde’s assessment, essentially the same as Dr Wearne’s, that there is an underlying back condition that can flare up on occasions.  The particular flare up in June 2001 was resolved by late August 2001.  Mr Sidney had returned to the same position he was in prior to the driving incident. 

29.     Mr Sidney’s position was that he suffers back pain and he should receive compensation from the MCRS or from Comcare.  He had approached Comcare but was put off when Comcare read a report by Dr Sanderson referring only to the driving injury as the cause of the condition.  Comcare was not apprised of any possible continuing contribution from Mr Sidney’s SMHEA incident in 1985.  On 22 April 2004 Comcare wrote to Mr Sidney declining to reopen the 1985 claim.

30.     We agree with Mr Whybrow and Drs Wearne and Speldewinde.  We find that Mr Sidney suffers from degenerative disease of the lumbosacral spine.  The condition was temporarily aggravated by the incident on 24 June 2001 but that aggravation ceased by 21 August 2001. 

31.     We can see no compensation owing to Mr Sidney from that period in 2001.  The Defence Force arranged for his medical attention.  He had retired so he was not incapacitated for any work as a result of the injury.  He has sustained no permanent impairment from the injury.  There is nothing to suggest any ongoing entitlement to home help or aids or appliances.

CONCLUSION

32.     We have found that the MCRS made the correct decision when it decided that Mr Sidney’s injury was a temporary aggravation of his underlying degenerative disease of the lumbosacral spine.  That means that Mr Sidney has no ongoing entitlement to compensation from the MCRS in respect of the injury on 24 June 2001.

DECISION

33.     The reviewable decision is affirmed.  Mr Sidney qualifies for no costs associated with this application.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .....................................................................................
  Associate

Date of hearing  11 May 2004
Date of Decision  May 2004
Advocate for the applicant        Self-represented
Counsel for the respondent      Mr Steve Whybrow
Solicitor for the respondent      Sparke Helmore Solicitors